Chapter 3301-51 Education of Students with Special Needs

(A)
Applicability of requirements The purpose
of Chapter 3301-51 of the Administrative Code is to ensure that all children
with disabilities residing in Ohio between the ages of three and twenty-one
years, inclusive, including children with disabilities who have been suspended
or expelled from school, have available to them a free appropriate public
education (FAPE), as provided by Part B of the Individuals with Disabilities
Education Act, as amended by the Individuals with Disabilities Education
Improvement Act of 2004 (IDEA) at
20 U.S.C. 1400 (
Public Law 108-446 of the 108th Congress, December 3, 2004),
related federal regulations at 34 C.F.R. Part 300 (October 13, 2006), Chapter
3323. of the Revised Code, the provisions of this chapter of the Administrative
Code, and applicable state policies, procedures, and guidelines issued by the
superintendent of public instruction.

(1)
The
provisions of this chapter shall provide that:

(a)
Children with disabilities have available
to them FAPE that emphasizes special education and related services designed to
meet their unique needs and prepare them for further education, employment, and
independent living; and

(b)
The
rights of children with disabilities and their parents are protected.

(2)
School district of residence

(a)
The child's school district of residence
is responsible, in all instances, for ensuring that the requirements of
paragraph (A) of this rule for making FAPE available are met for every eligible
child in its jurisdiction, regardless of whether services are provided by
another school district, other educational agency, juvenile justice facility,
or other facility, agency, department, or entity unless Chapter 3323. of the
Revised Code, or a rule adopted by the state board of education specifies that
another school district, other educational agency, or other agency, department,
or entity is responsible for ensuring compliance with Part B of the
IDEA.

(b)
Notwithstanding paragraph
(A)(2)(a) of this rule, a school district of residence is not required to pay
for the cost of education, including special education and related services, of
a child with a disability at a nonpublic school or facility if that school
district made FAPE available to the child, and the parents elected to place the
child in a nonpublic school or facility. However, the school district must
include the child in the population whose needs are addressed consistent with
the requirements of rule
3301-51-08
of the Administrative Code.

(3)
School district other than school
district of residence

(a)
Each school
district is responsible for serving a child with a disability who is living in
its school district, even though the school district is not the child's school
district of residence. The child's school district of residence retains
responsibility for making FAPE available to the child.

(b)
"Serving a child with a disability" means
educating the child which includes making special education and related
services available to the child.

(i)
The
responsibility to serve a nonresident child with a disability living in the
school district includes, but is not limited to, a child with a disability
placed in a juvenile justice facility, institution, hospital, agency,
department, home as defined in section
3313.64
of the Revised Code, or other facility or entity located in the school
district.

(ii)
The responsibility
to serve a nonresident child with a disability does not apply to the school
district in which the child is living if the child is already being served by
another school district, a nonpublic school, county board of
developmental
disabilities (county board of DD), other educational agency, a state or local agency
or institution, or other provider, including an open enrollment school
district, the Ohio department of youth services, or provider for the "Autism
Scholarship Program" established by section
3310.41
of the Revised Code, or a provider of the "Jon Peterson
Special Needs Program" established by section
3310.52
of the Revised Code. However, if the child is placed in a nonpublic
school in the school district, the school district must include the child in
the population whose needs are addressed consistent with the requirements of
rule
3301-51-08
of the Administrative Code.

(4)
Funding for special education

No school district, county board of DD, or other
educational agency shall receive state or federal funds for special education
and related services or provide special education and related services unless
such special education and related services are provided in accordance with all
applicable provisions of the IDEA and related federal regulations, Chapter
3323. of the Revised Code, this chapter of the Administrative Code, and related
state policies, procedures, and guidelines issued by the superintendent of
public instruction.

(5)
Plan

Each school district, county board of
DD, or
other educational agency, in providing for the education of children with
disabilities within its jurisdiction, must have in effect a plan, written
policies and procedures, and programs that are consistent with the state's
policies and procedures related to the implementation of Part B of the IDEA.
The plan shall provide assurances to the superintendent of public instruction
that the school district, county board of DD, or other
educational agency meets each of the applicable conditions in
34 C.F.R. 300.201 to
300.213
(October 13, 2006). Each school district's plan shall also meet the
requirements of section
3323.08
of the Revised Code. Each school district, county board of
DD, or
other educational agency shall submit its plan to the superintendent of public
instruction as part of its comprehensive continuous improvement plan.

(6)
Documentation and information

The superintendent of public instruction may require a state
agency, school district, county board of DD, or other
educational agency to provide documentation that special education and related
services for children with disabilities provided by the public agency are
provided in compliance with the requirements specified in paragraph (A) of this
rule.

(a)
A school district, county
board of DD, or other educational agency must provide the
superintendent of public instruction with information necessary to enable the
superintendent to carry out the state's duties under Part B of the IDEA,
including, information relating to the performance of children with
disabilities participating in programs carried out under Part B of the
IDEA.

(b)
A school district, county
board of DD, or other educational agency must make available to
parents of children with disabilities and to the general public all documents
relating to the eligibility of the school district, county board of
DD, or
other educational agency under Part B of the IDEA.

(c)
A school district, county board of
DD, or
other educational agency must cooperate in the secretary's efforts under
section 1308 of the Elementary and Secondary Education Act of 1965, as amended
and specified in the No Child Left Behind Act of 2001, January 2002,
20 U.S.C. 6301(ESEA) to ensure the
linkage of records pertaining to migratory children with disabilities for the
purpose of electronically exchanging, among the states, health, and educational
information regarding those children.

(7)
Ineligibility and opportunity for hearing

If the superintendent of public instruction determines that a
state agency, school district, county board of DD, or other
educational agency is not eligible under Part B of the IDEA for purposes of
receiving assistance under Part B of the IDEA, the superintendent shall:

(a)
Notify the state agency, school district,
county board of DD, or other educational agency of that determination;
and

(b)
Provide the state agency,
school district, county board of DD, or other educational agency with reasonable notice
and an opportunity for a hearing.

(8)
Effect of noncompliance on funding;
notice to public

If the superintendent of public instruction, after reasonable
notice and an opportunity for a hearing, finds that a state agency, school
district, county board of DD, or other educational agency that has been
determined to be eligible under Part B of the IDEA is failing to comply with
any requirement in Sections
34 C.F.R. 300.201 to
34 C.F.R. 300.213 (October 13, 2006):

(a)
The superintendent of public instruction
must reduce or must not provide any further payment to the state agency, school
district, county board of DD, or other educational agency until the state
superintendent is satisfied that the state agency, school district, county
board of DD, or other educational agency is complying with that
requirement.

(b)
Any state agency,
school district, county board of DD, or other educational agency in receipt of a notice
described in paragraph (A)(8)(a) of this rule must, by means of public notice,
take the measures necessary to bring the pendency of an action pursuant to this
rule to the attention of the public within the jurisdiction of the state
agency, school district, county board of DD, or other
educational agency.

(1)
"Act"
or "IDEA" means the Individuals with Disabilities Education Act, as amended by
the Individuals with Disabilities Education Improvement Act of 2004 at
20 U.S.C. 1400,
Public Law 108-446 of the 108th Congress, December 3, 2004
(IDEA).

(2)
"Assistive technology
device" means any item, piece of equipment, or product system, whether acquired
commercially off the shelf, modified, or customized, that is used to increase,
maintain, or improve the functional capabilities of a child with a disability.
The term does not include a medical device that is surgically implanted, or the
replacement of such device.

(3)
"Assistive technology service" means any service that directly assists a child
with a disability in the selection, acquisition, or use of an assistive
technology device. The term includes:

(a)
The
evaluation of the needs of a child with a disability, including a functional
evaluation of the child in the child's customary environment;

(b)
Purchasing, leasing, or otherwise
providing for the acquisition of assistive technology devices by children with
disabilities;

(d)
Coordinating and using other therapies,
interventions, or services with assistive technology devices, such as those
associated with existing education and rehabilitation plans and
programs;

(e)
Training or technical
assistance for a child with a disability or, if appropriate, that child's
family; and

(f)
Training or
technical assistance for professionals (including individuals providing
education or rehabilitation services), employers, or other individuals who
provide services to, employ, or are otherwise substantially involved in the
major life functions of that child.

(4)
"Average daily membership" means the
number of children that are counted to generate state funds under the Ohio
school foundation funding program.

(5)
"Benchmark" means a specific statement of
what the child should know and be able to do in a specified segment of the
year. Benchmarks describe how far the child is expected to progress toward the
annual goal and by when. Benchmarks establish expected performance levels that
allow for regular checks of progress that coincide with the reporting periods
for informing parents of the child's progress toward achieving the annual
goals.

(6)
"Braille," unless
otherwise specified, means a tactile system of reading and writing for
individuals with visual impairments commonly known as standard English
braille.

(7)
"Caseload for one
preschool special education teacher" means the number of children who
collectively comprise the full time equivalency for ratios or
funding.

(8)
"Charter school" or
"community school" has the meaning given the term in Section 5210(1) of the
Elementary and Secondary Education Act of 1965, as amended and reauthorized by
the No Child Left Behind Act of 2001, January 2002,
20 U.S.C. 6301(ESEA). The term
"charter school" does not have the same meaning as "chartered nonpublic
school."

(9)
"Chartered nonpublic
school" means a school chartered by the state board of education pursuant to
section
3301.16
of the Revised Code and that meets the minimum standards for chartered
nonpublic schools cited in the "Operating Standards for Ohio's Elementary and
Secondary Schools" (February 2006) in rule
3301-35-12
of the Administrative Code.

(10)
"Child with a disability" means a child evaluated in accordance with rule
3301-51-06 of the
Administrative Code as having an intellectual disability
(mental retardation), a hearing impairment (including deafness), a speech or
language impairment, a visual impairment (including blindness), a serious
emotional disturbance (referred to in this rule as "emotional disturbance"), an
orthopedic impairment, autism, traumatic brain injury, an other health
impairment, a specific learning disability, deaf-blindness,
a developmental delay (for a child between the ages of
three and five), or multiple disabilities, and who, by reason thereof,
needs special education and related services.

(a)
Subject to paragraph (B)(10)(b) of this
rule, if it is determined, through an appropriate evaluation under rule
3301-51-06 of the
Administrative Code, that a child has one of the disabilities identified in
this rule, but needs only a related service and not special education, the
child is not a child with a disability under this rule.

(b)
If, consistent with the definition of
special education in paragraph (B)(58) of this rule, the individualized
education program (IEP) team considers the related service required by the
child to be special education rather than a related service under state
standards, the child would be determined to be a child with a disability under
this rule.

(c)
Children aged three
through five years who are experiencing developmental delays. "Child with a
disability" for children aged three through five years, may, subject to the
conditions described in rule
3301-51-03 of the
Administrative Code for the use of the term developmental delay, include a
child:

(i)
Who is experiencing developmental
delays, as defined by rule
3301-51-11
of the Administrative Code and as measured by appropriate diagnostic
instruments and procedures, in one or more of the following areas: physical
development, cognitive development, communication development, social or
emotional development, or adaptive development as provided by rule
3301-51-11
of the Administrative Code; and

(d)
Definitions of disability terms. The
terms used in this definition of a "child with a disability" are defined as
follows:

(i)
"Autism" means a developmental
disability significantly affecting verbal and nonverbal communication and
social interaction, generally evident before age three, that adversely affects
a child's educational performance. Other characteristics often associated with
"autism" are engagement in repetitive activities and stereotyped movements,
resistance to environmental change or change in daily routines, and unusual
responses to sensory experiences.

(a)
Autism
does not apply if a child's educational performance is adversely affected
primarily because the child has an emotional disturbance, as defined in
paragraph (B)(10)(d)(v) of this rule.

(b)
A child who manifests the characteristics
of autism after age three could be identified as having autism if the criteria
in paragraph (B)(10)(d)(i) of this rule are satisfied.

(ii)
" Intellectual
disability" (mental retardation) means significantly subaverage general
intellectual functioning, existing concurrently with deficits in adaptive
behavior and manifested during the developmental period, that adversely affects
a child's educational performance. This definition replaces the definition of
mental retardation in
34 C.F.R. 300.8(c)(6) (October 13,
2006) and shall be used instead whenever the federal regulations at 34 C.F.R.
Part 300 (October 13, 2006), state statutes at Chapter 3323. of the Revised
Code, or the state rules in Chapter 3301-51 of the Administrative Code refer to
mental retardation or cognitive disability.

(a)
"Significantly subaverage general
intellectual functioning" refers to an intelligence quotient of seventy or
below as determined through a measure of cognitive functioning administered by
a school psychologist or a qualified psychologist using a test designed for
individual administration. Based on a standard error of measurement and
clinical judgment, a child may be determined to have significant subaverage
general intellectual functioning with an intelligence quotient not to exceed
seventy-five.

(b)
"Deficits in
adaptive behavior" means deficits in two or more applicable skill areas
occurring within the context of the child's environments and typical of the
child's chronological age peers.

(c)
A child who was identified by an Ohio
school district as having a developmental handicap prior to July 1, 2002 shall
be considered a child with a disability if the child continues to meet the
definition of "developmentally handicapped" in paragraph "N." of former rule
3301-51-01
of the Administrative Code and the eligibility requirements of paragraph "F.1"
of former rule
3301-51-04 of the
Administrative Code that are both contained in the "Rules for the Education of
Handicapped Children," which were effective July 1, 1982 and were rescinded
July 1, 2002. A child who meets these provisions shall be eligible to receive
special education and related services in accordance with the "Operating
Standards for Ohio's Schools Serving Children with Disabilities" effective July
1, 2008.

(iii)
"Deaf-blindness" means concomitant hearing and visual impairments, the
combination of which causes such severe communication and other developmental
and educational needs that they cannot be accommodated in special education
programs solely for children with deafness or children with
blindness.

(iv)
"Deafness" means a
hearing impairment that is so severe that the child is impaired in processing
linguistic information through hearing, with or without amplification that
adversely affects a child's educational performance.

(v)
"Emotional disturbance" means a condition
exhibiting one or more of the following characteristics over a long period of
time and to a marked degree that adversely affects a child's educational
performance:

(a)
An inability to learn that
cannot be explained by intellectual, sensory, or health factors.

(b)
An inability to build or maintain
satisfactory interpersonal relationships with peers and teachers.

(c)
Inappropriate types of behavior or
feelings under normal circumstances.

(d)
A general pervasive mood of unhappiness
or depression.

(e)
A tendency to
develop physical symptoms or fears associated with personal or school
problems.

(f)
Emotional disturbance
includes schizophrenia. The term does not apply to children who are socially
maladjusted, unless it is determined that they have an emotional disturbance
under paragraph (B)(10)(d)(v) of this rule.

(vi)
"Hearing impairment" means an impairment
in hearing, whether permanent or fluctuating, that adversely affects a child's
educational performance but that is not included under the definition of
deafness in this rule.

(vii)
"Multiple disabilities" means concomitant impairments (such as mental
retardation-blindness or mental retardation-orthopedic impairment), the
combination of which causes such severe educational needs that they cannot be
accommodated in special education programs solely for one of the impairments.
"Multiple disabilities" does not include deaf-blindness.

(viii)
"Orthopedic impairment" means a severe
orthopedic impairment that adversely affects a child's educational performance.
The term includes impairments caused by a congenital anomaly, impairments
caused by disease (e.g., poliomyelitis, bone tuberculosis), and impairments
from other causes (e.g., cerebral palsy, amputations, and fractures or burns
that cause contractures).

(ix)
"Other health impairment" means having limited strength, vitality, or
alertness, including a heightened alertness to environmental stimuli, that
results in limited alertness with respect to the educational environment, that:

(a)
General. "Specific learning disability"
means a disorder in one or more of the basic psychological processes involved
in understanding or in using language, spoken or written, that may manifest
itself in the imperfect ability to listen, think, speak, read, write, spell, or
to do mathematical calculations, including conditions such as perceptual
disabilities, brain injury, minimal brain dysfunction, dyslexia, and
developmental aphasia.

(b)
Disorders not included. Specific learning disability does not include learning
problems that are primarily the result of visual, hearing, or motor
disabilities, of intellectual disability, of emotional disturbance, or
of environmental, cultural, or economic disadvantage.

(xi)
"Speech or language impairment" means a
communication disorder, such as stuttering, impaired articulation, a language
impairment, or a voice impairment, that adversely affects a child's educational
performance.

(xii)
"Traumatic brain
injury" means an acquired injury to the brain caused by an external physical
force or by other medical conditions, including but not limited to stroke,
anoxia, infectious disease, aneurysm, brain tumors and neurological insults
resulting from medical or surgical treatments. The injury results in total or
partial functional disability or psychosocial impairment or both, that
adversely affects a child's educational performance. The term applies to open
or closed head injuries, as well as to other medical conditions that result in
acquired brain injuries. The injuries result in impairments in one or more
areas such as cognition; language; memory; attention; reasoning; abstract
thinking; judgment; problem-solving; sensory, perceptual, and motor abilities;
psychosocial behavior; physical functions; information processing; and speech.
The term does not apply to brain injuries that are congenital or degenerative,
or to brain injuries induced by birth trauma. This definition replaces the
definition of traumatic brain injury in
34 C.F.R. 300.8(c)(12) (October 13,
2006) and shall be used instead whenever the federal regulations at 34 C.F.R.
Part 300 (October 13, 2006), state statutes at Chapter 3323. of the Revised
Code, or the state rules in Chapter 3301-51 of the Administrative Code refer to
traumatic brain injury.

(xiii)
"Visual impairment" including blindness means an impairment in vision that,
even with correction, adversely affects a child's educational performance.

(a)
The term visual impairment includes both partial sight and
blindness;

(b)
The term "visual impairment" does not
include a disorder in which one or more of the basic psychological processes,
such as perceptual disabilities, brain injury, minimal brain dysfunction,
dyslexia, and developmental aphasia.

(11)
"Community school" means a
public school, created in accordance with Chapter 3314. of the Revised Code,
that is independent of any school district and part of the state's program of
education. Community schools shall be considered school districts for the
purposes of this chapter of the Administrative Code.

(12)
"Consent" means that:

(a)
The parent has been fully informed of all
information relevant to the activity for which consent is sought, in the
parent's native language, or other mode of communication;

(b)
The parent understands and agrees in
writing to the carrying out of the activity for which the parent's consent is
sought, and the consent describes that activity and lists the records (if any)
that will be released and to whom; and

(i)
The
parent understands that the granting of consent is voluntary on the part of the
parent and may be revoked at anytime.

(ii)
If a parent revokes consent, that
revocation is not retroactive (i.e., it does not negate an action that has
occurred after the consent was given and before the consent was
revoked).

(14)
"County board of
developmental disabilities" (county board of DD) means a
county board of developmental disabilities as provided by section
5126.02
of the Revised Code.

(15)
"Day"
means calendar day unless otherwise indicated as business day or school day.

(a)
"Business day" means Monday through
Friday, except for federal and state holidays (unless holidays are specifically
included in the designation of business day).

(b)
"School day" means any day, including a
partial day that children are in attendance at school for instructional
purposes. School day has the same meaning for all children in school, including
children with and without disabilities.

(16)
"Destruction" means physical destruction
or removal of personal identifiers from information so that the information is
no longer personally identifiable.

(17)
"Education records" means the type of
records covered under the definition of "education records" in 34 C.F.R. Part
99 ( January 14, 2013) (the regulations implementing the
Family Educational Rights and Privacy Act of 1974, August 1974,
20 U.S.C. 1232g(FERPA) ). Under that
definition, the term "education records" means those records that are directly
related to a student and are maintained by an educational agency or institution
or by a party acting for the agency or institution. The term does not include
the type of records which are listed and described as records excluded from
that definition under
34 C.F.R. 99.3(b)(1) to
34 C.F.R. 99.3(b)(5) ( January 14,
2013).

(18)
"Elementary
school" means a nonprofit institutional day or residential school, including an
elementary community school, that provides elementary education, as determined
under state law.

(19)
"Equipment"
means:

(a)
Machinery, utilities, and built-in
equipment, and any necessary enclosures or structures to house the machinery,
utilities, or equipment; and

(b)
All other items necessary for the functioning of a particular facility as a
facility for the provision of educational services, including items such as
instructional equipment and necessary furniture; printed, published and
audio-visual instructional materials; telecommunications, sensory, and other
technological aids and devices; and books, periodicals, documents, and other
related materials.

(20)
"Evaluation" means procedures used in accordance with rule
3301-51-06 of the
Administrative Code for evaluations to determine whether a child has a
disability and the nature and extent of the special education and related
services that the child needs.

(21)
"Evaluation team" means the parents and a group
of qualified
professionals.

(22)
"Evaluation team for a child suspected of having a
specific learning disability" means the parents and a group of qualified
professionals, which must include:

(a)
The child's regular teacher; or

(b)
If the child
does not have a regular education teacher, a regular classroom teacher
qualified to teach a child of the child's age; or

(c)
For a child of
less than school-age, an individual qualified by the Ohio department of
education to teach a child of the child's age; and

(d)
At least one
person qualified to conduct individual diagnostic examinations of children,
such as a school psychologist, speech-language pathologist, or remedial
teacher.

(23)
"Re-evaluation team" means the IEP team and other
qualified professionals.

(24)
"Excess costs"
means those costs that are in excess of the average annual per-student
expenditure in a school district during the preceding school year for an
elementary school or secondary school student, as may be appropriate, and that
must be computed after deducting:

(a)
Amounts
received:

(i)
Under Part B of the
IDEA;

(ii)
Under Part A of Title I
of the Elementary and Secondary Education Act of 1965, as amended and
reauthorized by the No Child Left Behind Act of 2001, January 2002,
20 U.S.C. 6301(ESEA); and

(iii)
Under Parts A and B of Title III of the
ESEA and;

(b)
Any state
or local funds expended for programs that would qualify for assistance under
any of the acts described in paragraph (B)( 24)(a) of this
rule, but excluding any amounts for capital outlay or debt service. (See
appendix A to Part 300 of the IDEA for an example of how excess costs must be
calculated.)

(a)
Are provided at public
expense, under public supervision and direction, and without charge;

(b)
Meet the standards of the Ohio department
of education, including the requirements of this rule;

(c)
Include an appropriate preschool,
elementary school, or secondary school education in the state involved;
and

(d)
Are provided in conformity
with an IEP that meets the requirements of rule
3301-51-07
of the Administrative Code for individualized education programs.

(26)
"General curriculum" refers to the same
curriculum that is used with children without disabilities.

(27)
"General education" means a learning environment that provides a community of
students with the opportunity to acquire skills and knowledge necessary to meet
state and local performance objectives.

"Help Me Grow" means a system of early
intervention services for infants and toddlers with disabilities which are
provided, in accordance with Part C of the IDEA, federal regulations, state
law, and state rules, by the lead agency selected by the governor of the
state.

(29)
Highly qualified special education teacher:

(a)
Requirements for special education
teachers teaching core academic subjects. For any public elementary or
secondary school special education teacher teaching core academic subjects, the
term "highly qualified" has the meaning given the term in Section 9101 of the
Elementary and Secondary Education Act of 1965, as amended and reauthorized by
the No Child Left Behind Act of 2001, January 2002,
20 U.S.C. 6301(ESEA) and
34 C.F.R. 200.56 (July 1, 2007), except that the
requirements for highly qualified also:

(i)
Include the requirements described in paragraph (B)( 29)(b) of this
rule; and

(ii)
Include the option
for teachers to meet the requirements of Section 9101 of the ESEA by meeting
the requirements of paragraphs (B)( 29)(c) and (B)( 29)(d) of this
rule.

(b)
Requirements
for special education teachers in general

(i)
When used with respect to any public elementary school or secondary school
special education teacher who is teaching in the
state, highly qualified requires that:

(a)
The
teacher has obtained full state certification as a special education teacher
(including certification obtained through alternative routes to certification),
or passed the state special education teacher licensing examination, and holds
a license to teach in the state as a special education teacher, except that
when used with respect to any teacher teaching in a community school, "highly
qualified" means that the teacher meets the certification or licensing
requirements, if any, set forth in the state's community school law;

(b)
The teacher has not had special education
certification or licensure requirements waived on an emergency, temporary, or
provisional basis; and

(c)
The
teacher holds at least a bachelor's degree.

(ii)
A teacher will be considered to meet the
standard in paragraph (B)( )(29)(b)(i)(a)
of this rule if that teacher is participating in an alternative route to
special education certification program under which:

(a)
The teacher:

(i)
Receives high-quality professional
development that is sustained, intensive, and classroom-focused in order to
have a positive and lasting impact on classroom instruction, before and while
teaching;

(ii)
Participates in a
program of intensive supervision that consists of structured guidance and
regular ongoing support for teachers or a teacher mentoring program;

(iii)
Assumes functions as a teacher only for
a specified period of time not to exceed three years; and

(iv)
Demonstrates satisfactory progress
toward full certification as prescribed by the state; and

(b)
The state ensures, through its
certification and licensure process, that the provisions in paragraph
(B)( 29)(b)(ii)(a) of this rule are met.

(iii)
Any public elementary school
or secondary school special education teacher teaching in Ohio, who is not
teaching a core academic subject, is highly qualified if the teacher meets the
requirements in paragraph (B)( 29)(b)(i) or the requirements in paragraphs
(B)( 29)(b)(i)(c) and (B)( 29)(b)(ii) of this
rule.

When used with respect to a special education teacher who
teaches core academic subjects exclusively to children who are assessed against
alternate achievement standards established under
34 C.F.R. 200.1(d) (July 1,
2007), "highly qualified" means the teacher, whether new or not new to the
profession, may either:

(i)
Meet the
applicable requirements of Section 9101 of the ESEA and
34 C.F.R. 200.56 (July 1, 2007) for any elementary,
middle, or secondary school teacher who is new or not new to the profession;
or

(ii)
Meet the requirements of
paragraph (B) or (C) of Section 9101(23) of the ESEA as applied to an
elementary school teacher, or, in the case of instruction above the elementary
level, meet the requirements of paragraph (B) or (C) of Section 9101(23) of the
ESEA as applied to an elementary school teacher and have subject matter
knowledge appropriate to the level of instruction being provided and needed to
effectively teach to those standards, as determined by the state.

(d)
Requirements for special
education teachers teaching multiple subjects Subject to paragraph (B)( 29)(e) of this
rule, when used with respect to a special education teacher who teaches two or
more core academic subjects exclusively to children with disabilities, "highly
qualified" means that the teacher may either:

(i)
Meet the applicable requirements of
Section 9101 of the ESEA and
34 C.F.R. 200.56(b) or (c) (July 1,
2007);

(ii)
In the case of a
teacher who is not new to the profession, demonstrate competence in all the
core academic subjects in which the teacher teaches in the same manner as is
required for an elementary, middle, or secondary school teacher who is not new
to the profession under
34 C.F.R. 200.56(c) (July 1, 2007)
which may include a single, high objective uniform state standard of evaluation
(HOUSSE) covering multiple subjects; or

(iii)
In the case of a new special education
teacher who teaches multiple subjects and who is highly qualified in
mathematics, language arts, or science, demonstrate, not later than two years
after the date of employment, competence in the other core academic subjects in
which the teacher teaches in the same manner as is required for an elementary,
middle, or secondary school teacher under
34 C.F.R. 200.56(c) (July 1, 2007),
which may include a single HOUSSE covering multiple subjects.

(e)
Separate HOUSSE standards for
special education teachers

Provided that any adaptations of the state's HOUSSE would not
establish a lower standard for the content knowledge requirements for special
education teachers and meets all the requirements for a HOUSSE for regular
education teachers:

(i)
A state may
develop a separate HOUSSE for special education teachers; and

(ii)
The standards described in paragraph
(B)( 29)(e)(i) of this rule may include single HOUSSE
evaluations that cover multiple subjects.

(f)
Rule of construction

Notwithstanding any other individual right of action that a
parent or student may maintain under this rule, nothing in this rule shall be
construed to create a right of action on behalf of an individual student or
class of students for the failure of a particular Ohio department of education
or school district employee to be highly qualified, or to prevent a parent from
filing a complaint under rule
3301-51-05
of the Administrative Code about staff qualifications with the Ohio department
of education as provided for under this rule.

(g)
Applicability of definition to ESEA; and
clarification of new special education teacher

(i)
A teacher who is highly qualified under
this rule is considered highly qualified for purposes of the ESEA.

(ii)
For purposes of paragraph (B)( 29)(d)(iii) of this
rule, a fully certified regular education teacher who subsequently becomes
fully certified or licensed as a special education teacher is a new special
education teacher when first hired as a special education teacher.

(h)
Nonpublic school teachers not
covered

The requirements in this rule do not apply to teachers hired by
nonpublic elementary schools and secondary schools including nonpublic school
teachers hired or contracted by school districts to provide equitable services
to parentally placed nonpublic school children with disabilities under rule
3301-51-08
of the Administrative Code.

(30)
"Homeless
children" has the meaning given the term homeless children and youths in
Section 725 (
42 U.S.C. 11434a ) of the McKinney-Vento
Homeless Assistance Act, as amended and specified in Title X, Part C, of the No
Child Left Behind Act of 2001, January 2002,
42 U.S.C. 11431.

(31)
"Include" means that the items named are not all
of the possible items that are covered, whether like or unlike the ones
named.

(32)
"Independent educational evaluation" means an
evaluation conducted by a qualified examiner who is not employed by the school
district responsible for the education of the child in question.

(33)
"Individualized education program" or IEP means a written statement for a child
with a disability that is developed, reviewed, and revised in accordance with
rule
3301-51-07
of the Administrative Code.

(34)
"Individualized
education program team" or IEP team means a group of individuals described in
paragraph (I) of rule
3301-51-07
of the Administrative Code that is responsible for developing, reviewing, or
revising an IEP for a child with a disability.

(35)
"Institution of
higher education":

(a)
Has the meaning given
the term in Section 101 of the Higher Education Act of 1965, as amended and
specified in the Higher Education Amendments of 1998, January 1998,
20 U.S.C. 1021(HEA);
and

(b)
Also includes any community
college receiving funds from the secretary of the interior under the Tribally
Controlled Community College or University Assistance Act of 1978 (renamed
Tribally Controlled College or University Assistance Act of 1978), October
1978,
25 U.S.C. 1801.

(36)
"Itinerant services for a preschool child who is eligible for special
education services" means services provided by intervention specialists
or related services personnel which occur in the setting where the child, the
child and parent(s), or the child and caregiver are located as opposed to
services provided at a centralized location.

(37)
"Limited English
proficient" has the meaning given the term in Section 9101(25) of the
Elementary and Secondary Education Act of 1965, as amended and reauthorized by
the No Child Left Behind Act of 2001, January 2002,
20 U.S.C. 6301(ESEA).

(38)
Native language:

(a)
When used with respect
to an individual who is limited English proficient, "native language" means the
following:

(i)
The language normally used by
that individual, or, in the case of a child, the language normally used by the
parents of the child, except as provided in paragraph (B)( 38)(a)(ii) of this
rule.

(ii)
In all direct contact
with a child (including evaluation of the child), the language normally used by
the child in the home or learning environment.

(b)
For an individual with deafness or
blindness, or for an individual with no written language, the mode of
communication is that normally used by the individual (such as sign language,
braille, or oral communication).

(39)
"Non-chartered
nonpublic school" means a school, that is not chartered or seeking a charter
from the state board of education because of truly held religious beliefs. Such
school shall annually certify in a report to the parents of its pupils that the
school meets Ohio minimum standards for non-chartered, non-tax supported
schools cited in the "Operating Standards for Ohio's Elementary and Secondary
Schools" in paragraphs (A) to (H) of rule
3301-35-12
of the Administrative Code.

(40)
"Nonpublic
school" means a private school which is recognized by the Ohio department of
education as either a chartered school as defined in section
3301.16
of the Revised Code or a non-chartered school as described in rule
3301-35-08
of the Administrative Code. This definition shall apply whenever the term
"private school" is used in the federal regulations at 34 C.F.R. Part 300
(October 13, 2006) or whenever the term "nonpublic school" is used in this
chapter of the Administrative Code or in guidelines issued by the Ohio
department of education for each school district to provide equitable services
for children who are attending nonpublic schools located within the school
district.

(41)
"Objective" means a smaller, more manageable
learning task that a child must master as a step toward achieving an annual
goal. Objectives break the skills described in the annul goal into discrete
components that, when mastered, allow the child to successfully obtain the
goal.

(42)
"Other educational agency" means a joint
vocational school district; department; division; bureau; office; institution;
board; commission; committee; authority; or other state or local agency, other
than a school district or an agency administered by the department of
developmental
disabilities, that provides or seeks to provide special education or related
services to children with disabilities.

(43)
"Paraprofessional services" include services provided by school, county board
of DD,
and other educational agency employees who are adequately trained to assist in
the provision of special education and related services to children with
disabilities. Paraprofessionals work under the supervision of teachers,
intervention specialists, and/or related service providers. Other titles used
to identify these service providers include teacher assistants, educational
aides, school psychology aides, occupational therapy assistants, physical
therapist assistants, and job coaches.

(44)
"Parent" means:

(a)
A biological or adoptive parent of a
child but not a foster parent of a child;

(b)
A guardian generally authorized to act as
the child's parent, or authorized to make educational decisions for the child
(but not the state if the child is a ward of the state);

(c)
An individual acting in the place of a
biological or adoptive parent (including a grandparent, stepparent, or other
relative) with whom the child lives, or an individual who is legally
responsible for the child's welfare; or

(d)
A surrogate parent who has been appointed
in accordance with rule
3301-51-05
of the Administrative Code.

(e)
Except as provided in paragraph (B)( 44)(f) of this rule, the biological or adoptive
parent, when attempting to act as the parent under this rule and when more than
one party is qualified under this rule to act as a parent, must be presumed to
be the parent for purposes of this chapter of the Administrative Code unless
the biological or adoptive parent does not have legal authority to make
educational decisions for the child.

(f)
If a judicial decree or order identifies
a specific person or persons under paragraphs (B)( 44)(a) to
(B)( 44)(c)
of this rule to act as the parent of a child or to make educational decisions
on behalf of a child, then such person or persons shall be determined to be the
parent for purposes of this rule.

(45)
"Parent mentor"
means a parent of a child with a disability employed by a school district to
assist education personnel and families by providing training, support, and
information services.

(46)
"Parent training
and information center" means a center assisted under Sections 671 or 672 of
the IDEA.

(47)
"Parentally placed nonpublic school children with
disabilities" means children with disabilities enrolled by their parents in
nonpublic, including religious, schools or facilities that meet the definition
of elementary school or secondary school in this rule, other than children with
disabilities in nonpublic schools who are placed or referred by public
agencies.

(48)
"Participating agency" means any agency or
institution that collects, maintains, or uses personally identifiable
information, or from which information is obtained, under Part B of the
IDEA.

(49)
"Personally identifiable" means information that
contains:

(a)
The name of the child, the
child's parent, or other family member;

(b)
The address of the child;

(c)
A personal identifier, such as the
child's social security number or student number; or

(d)
A list of personal characteristics or
other information that would make it possible to identify the child with
reasonable certainty.

(50)
"Preschool child
who is eligible for special education services" means
a child who:

(a)
Is at least three years of
age and not six years of age; and

(b)
Meets the definition of a "child with a
disability" in paragraph (B)(10) of this rule or, at the discretion of the
school district, is a child who:

(i)
Is
experiencing developmental delays, as defined in rule
3301-51-11
of the Administrative Code and as measured by appropriate diagnostic
instruments and procedures, in one or more of the following areas: physical
development, cognitive development, communication development, social or
emotional development, or adaptive development; and

(51)
"Public agency" includes the school districts, county boards of
developmental
disabilities, other educational agencies, community schools and any other
political subdivisions of the state that are responsible for providing
education to children with disabilities.

(52)
"Qualified personnel" means personnel who have
met Ohio department of education-approved or Ohio department of
education-recognized certification, licensing, or other comparable requirements
that apply to the area in which the individuals are providing special education
or related services.

(53)
"Referral" means
the date the public school district or community school receives a parent's,
school district's, or other educational agency's request for an initial
evaluation or reevaluation.

(54)
"Related
services" means transportation and such developmental, corrective, and other
supportive services as are required to assist a child with a disability to
benefit from special education, and includes speech-language pathology and
audiology services, interpreting services, psychological services, physical and
occupational therapy, recreation, including therapeutic recreation, early
identification and assessment of disabilities in children, counseling services,
including rehabilitation counseling, orientation and mobility services, and
medical services for diagnostic or evaluation purposes. Related services also
include school health services and school nurse services, social work services
in schools, and parent counseling and training.

(a)
Exception; services that apply to
children with surgically implanted devices, including cochlear implants.

(i)
Related services do not include a medical
device that is surgically implanted, the optimization of that device's
functioning (e.g., mapping), maintenance of that device, or the replacement of
that device.

(ii)
Nothing in
paragraph (B)( 54)(a)(i) of this rule:

(a)
Limits the right of a child with a
surgically implanted device (e.g., cochlear implant) to receive related
services (as listed in this rule) that are determined by the IEP team to be
necessary for the child to receive FAPE.

(b)
Limits the responsibility of a school
district to appropriately monitor and maintain medical devices that are needed
to maintain the health and safety of the child, including breathing, nutrition,
or operation of other bodily functions, while the child is transported to and
from school or is at school; or

(c)
Prevents the routine checking of an external component of a
surgically-implanted device to make sure it is functioning properly, as
required in rule
3301-51-02
of the Administrative Code.

(b)
Individual related services terms
defined. The terms used in this rule are defined as follows:

(i)
"Attendant services" are those that
assist children with disabilities with personal health care needs.

(ii)
"Audiology" includes:

(a)
Identification of children with hearing
loss;

(b)
Determination of the
range, nature, and degree of hearing loss, including referral for medical or
other professional attention for the habilitation of hearing;

(iv)
"Early identification and assessment of
disabilities in children" means the implementation of a formal plan for
identifying a disability as early as possible in a child's life.

(v)
"Interpreting services" includes:

(a)
The following, when used with respect to
children who are deaf or hard of hearing: oral transliteration services, cued
language transliteration services, sign language transliteration and
interpreting services, and transcription services, such as "communication
access real-time translation (CART)," "C-Print," and "TypeWell"; and

(b)
Special interpreting services for
children who are deaf-blind.

(vi)
"Medical services" means services
provided by a licensed physician to determine a child's medically related
disability that results in the child's need for special education and related
services.

(vii)
"Occupational
therapy"

(a)
Means services provided by a qualified
occupational therapist licensed under Chapter 4755. of the Revised Code;
and

(b)
Includes:

(i)
Improving, developing, or restoring
functions impaired or lost through illness, injury, or deprivation;

(ii)
Improving ability to perform tasks for
independent functioning if functions are impaired or lost; and

(iii)
Preventing, through early intervention,
initial or further impairment or loss of function.

(viii)
"Occupational therapy
assistant services" means services provided by an occupational therapy
assistant licensed under Chapter 4755. of the Revised Code and includes
assisting in the practice of occupational therapy under the direction and
supervision of an occupational therapist.

(ix)
"Orientation and mobility services":

(a)
Means services provided to blind or
visually impaired children by qualified personnel to enable those students to
attain systematic orientation to and safe movement within their environments in
school, home, and community; and

(b)
Includes teaching children the following,
as appropriate:

(i)
Spatial and environmental
concepts and use of information received by the senses (such as sound,
temperature and vibrations) to establish, maintain, or regain orientation and
line of travel (e.g., using sound at a traffic light to cross the
street);

(ii)
To use the long cane
or a service animal to supplement visual travel skills or as a tool for safely
negotiating the environment for children with no available travel
vision;

(iii)
To understand and use
remaining vision and distance low vision aids; and

(iv)
Other concepts, techniques, and
tools.

(x)
"Parent counseling and training" means:

(a)
Assisting parents in understanding the special needs of their child;

(b)
Providing parents with information about
child development; and

(c)
Helping
parents to acquire the necessary skills that will allow them to support the
implementation of their child's IEP.

(xii)
"Physical
therapist assistant services" means services provided by a physical therapist
assistant licensed under Chapter 4755. of the Revised Code who performs such
services under the direction and supervision of a physical therapist.

(xiii)
"Psychological services"

(a)
Include but
are not limited to:

(i)
Administering
psychological and educational tests, and other assessment procedures;

(iv)
Consulting with other staff members to plan and develop school programs and
interventions to meet the educational needs or special education needs of
children or groups of children as indicated by psychological tests, interviews,
direct observation, and behavioral evaluations;

(xvi)
"Rehabilitation counseling services"
means services provided by qualified personnel in individual or group sessions
that focus specifically on career development, employment preparation,
achieving independence, and integration in the workplace and community of a
student with a disability. The term also includes vocational rehabilitation
services provided to a student with a disability by vocational rehabilitation
programs funded under the Rehabilitation Act of 1973, as amended and specified
in the Rehabilitation Act Amendments of 1998, August 1998,
29 U.S.C. 701.

(xvii)
"School health services and school
nurse services" means health services that are designed to enable a child with
a disability to receive FAPE as described in the child's IEP. School nurse
services are services provided by a qualified school nurse. School health
services are services that may be provided by either a qualified school nurse
or other qualified person.

(xviii)
"Social work services in schools" includes:

(a)
Preparing a social or developmental
history on a child with a disability;

(b)
Group and individual counseling with the
child and family;

(c)
Working in
partnership with parents and others on those problems in a child's living
situation (home, school, and community) that affect the child's adjustment in
school;

(d)
Mobilizing school and
community resources to enable the child to learn as effectively as possible in
the child's educational program; and

(c)
Specialized equipment (such as special or adapted buses, lifts, and ramps), if
required to provide special transportation for a child with a
disability.

(55)
"School
district" means a city, local, exempted village school district, or a community
school.

(56)
"School district of residence" means:

(a)
The school district in which the child's
parents reside;

(b)
If the child is
enrolled in a community school, the community school is considered to be the
"school district of residence";

(c)
If the school district specified in paragraph (B)( 56)(a) or
(B)( 56)(b)
of this rule cannot be determined, the last school district in which the
child's parents are known to have resided if the parents' whereabouts are
unknown;

(d)
If the school district
specified in paragraph (B)( 56)(c) of this rule cannot be determined, the school
district determined by the court under section
2151.362
of the Revised Code, or if no district has been so determined, the school
district as determined by the probate court of the county in which the child
resides.

(e)
Notwithstanding
paragraphs (B)( 56)(a) to (B)( 56)(d) of this
rule, if a school district is required by section
3313.65
of the Revised Code to pay tuition for a child, that district shall be the
child's school district of residence.

(57)
"Scientifically
based research" has the meaning given the term in Section 9101(37) of the
Elementary and Secondary Education Act of 1965, as amended and reauthorized by
the No Child Left Behind Act of 2001, January 2002,
20 U.S.C. 6301(ESEA).

(58)
"Secondary school" means a nonprofit institutional day or residential school,
including a secondary community school that provides secondary education, as
determined under state law, except that it does not include any education
beyond grade twelve.

(59)
"Services plan"
means a written statement that describes the special education and related
services the school district will provide to a parentally placed child with a
disability enrolled in a nonpublic school who has been designated to receive
services, including the location of the services and any transportation
necessary, consistent with rule
3301-51-08
of the Administrative Code, and is developed and implemented in accordance with
rule
3301-51-08
of the Administrative Code.

(60)
Special
education:

(a)
General.

(i)
"Special education" means specially
designed instruction, at no cost to the parents, to meet the unique needs of a
child with a disability, including:

(a)
Instruction conducted in the classroom, in the home, in hospitals and
institutions, and in other settings; and

(b)
Instruction in physical
education.

(ii)
Special
education includes each of the following, if the services otherwise meet the
requirements of paragraph (B)( 60)(a)(i) of this rule:

(a)
Speech-language pathology services, or
any other related service, if the IEP team considers the service special
education rather than a related service under state standards;

(b)
Travel training; and

(c)
Vocational education.

(b)
Individual special
education terms defined. The terms in this rule are defined as follows:

(i)
"At no cost" means that all
specially-designed instruction is provided without charge, but does not
preclude incidental fees that are normally charged to nondisabled students or
their parents as a part of the regular education program.

(ii)
"Physical education" means:

(a)
The development of:

(i)
Physical and motor fitness;

(ii)
Fundamental motor skills and patterns;
and

(iii)
Skills in aquatics,
dance, and individual and group games and sports (including intramural and
lifetime sports); and

(iii)
"Specially designed instruction" means adapting, as appropriate to the needs of
an eligible child under this rule, the content, methodology, or delivery of
instruction:

(a)
To address the unique needs
of the child that result from the child's disability; and

(b)
To ensure access of the child to the
general curriculum, so that the child can meet the educational standards within
the jurisdiction of the school district that apply to all children.

(iv)
"Travel training" means
providing instruction, as appropriate, to children with significant cognitive
(intellectual) disabilities, and any other
children with disabilities who require this instruction, to enable them to:

(a)
Develop an awareness of the environment
in which they live; and

(b)
Learn
the skills necessary to move effectively and safely from place to place within
that environment (e.g., in school, in the home, at work, and in the
community).

(v)
"Vocational education" means organized educational programs that are directly
related to the preparation of individuals for paid or unpaid employment, or for
additional preparation for a career not requiring a baccalaureate or advanced
degree.

(61)
"Special class
or center based services for a preschool child who is eligible for special
education services" means a classroom program that provides group
educational experiences to children of similar ages or developmental levels on
a regularly scheduled basis and in a central location.

(62)
"Supervisory and coordinator services" includes providing information and
explanation regarding state and federal laws, recommended practice, and other
topics essential for the delivery of services to learners with disabilities;
helping school district personnel evaluate the effectiveness of special
education and related services; and providing in-service education to parents
and personnel involved in educating children with disabilities.

(63)
"Supplementary aids and services" means aids, services, and other supports that
are provided in regular education classes, other education-related settings,
and in extracurricular and nonacademic settings, to enable children with
disabilities to be educated with nondisabled children to the maximum extent
appropriate in accordance with the requirements for least restrictive
environment in rule
3301-51-09
of the Administrative Code.

(64)
"Transition from
Part C early intervention services" means the transition of children from the
Part C programs to preschool programs as specified in rule
3301-51-11
of the Administrative Code.

(65)
"Transition
services":

(a)
Means a coordinated set of
activities for a child with a disability that:

(i)
Is designed to be within a
results-oriented process, that is focused on improving the academic and
functional achievement of the child with a disability to facilitate the child's
movement from school to post-school activities, including postsecondary
education, vocational education, integrated employment (including supported
employment), continuing and adult education, adult services, independent
living, or community participation;

(ii)
Is based on the individual child's
needs, taking into account the child's strengths, preferences, and interests;
and includes:

(a)
Instruction;

(b)
Related services;

(c)
Community experiences;

(d)
The development of employment
in an integrated competitive environment and
other post-school adult living objectives; and

(e)
When assessment data supports a
need, acquisition of daily living skills and provision of a functional
vocational evaluation.

(b)
Shall be
provided by individuals who have the competencies, experiences, and training to
meet the individual student's transition services needs. Individuals
coordinating transition shall either:

(i)
Obtain the
transition to work endorsement; or

(ii)
Possess the
skills and knowledge to:

(a)
Facilitate a planning process among multiple agencies,
students and families to support a student's secondary transition
process;

(b)
Plan for the collection, sharing and utilization of
student's transition data that is relevant to the student's post school
outcomes, environment and support needs;

(h)
Create strategies that support the career development
pathways of students with disabilities leading to career and college
readiness.

(c)
Transition
services for children with disabilities may be special education, if provided
as specially designed instruction, or a related service, if required to assist
a child with a disability to benefit from special education.

(i)
In
the competitive labor market that is performed on a full-time or part-time
basis in an integrated setting; and

(ii)
For which an
individual is compensated at or above the minimum wage, but not less than the
customary wage and level of benefits paid by the employer for the same or
similar work performed by individuals who are not disabled.

(f)
Integrated setting as defined by
34 CFR 361.5(33)(ii) and used in
the context of employment outcomes, means a setting typically found in the
community in which applicants or eligible individuals interact with
non-disabled individuals, other than non-disabled individuals who are providing
services to those applicants or eligible individuals, to the same extent that
non-disabled individuals in a comparable positions interact with other
persons.

(66)
"Universal
design" has the meaning given the term in Section 3 of the Assistive Technology
Act of 1998, as amended and specified in the Assistive Technology Act of 2004,
October 2004,
29 U.S.C. 3002.

(67)
"Ward of the
state" means a child who, as determined by the state where the child resides,
is:

(A)
Each school district shall adopt and
implement written policies and procedures, approved by the Ohio department of
education, office for exceptional children, ensuring that a free appropriate
public education (FAPE) is made available to all children with disabilities
between the ages of three and twenty-one, inclusive, including children with
disabilities who have been suspended or expelled from school, for whom the
school district is the child's school district of residence, as defined in
paragraph (B)( 56) of rule
3301-51-01
of the Administrative Code and as provided by rule
3301-51-01
of the Administrative Code.

(B)
FAPE

(1)
General

Each school district shall make FAPE available to all children
between the ages of three and twenty-one, inclusive, including children with
disabilities who have been suspended or expelled from school, as provided for
in rule
3301-51-05
of the Administrative Code, for whom the school district is the child's school
district of residence.

(2)
FAPE for children beginning at age three

Each school district must ensure that:

(a)
The obligation to make FAPE available to
each eligible child for whom the school district is the child's school district
of residence begins no later than the child's third birthday; and

(b)
An individualized education program (IEP)
is in effect for the child by that date, in accordance with rule
3301-51-07
of the Administrative Code.

(c)
If
a child's third birthday occurs during the summer, the child's IEP team shall
determine the date when services under the IEP will begin.

(3)
Children advancing from grade to grade

(a)
Each school district of residence must
ensure that FAPE is available to any individual child with a disability who
needs special education and related services, even though the child has not
failed or been retained in a course or grade, and is advancing from grade to
grade.

(b)
The determination that a
child described in paragraph (B)(1) of this rule is eligible under this chapter
of the Administrative Code, must be made on an individual basis by the group
responsible within the child's school district of residence for making
eligibility determinations.

(C)
Limitation: exception to FAPE for certain
ages

The obligation of the school district of residence to make
FAPE available to all children with disabilities does not apply with respect to
the following:

(1)
Children with
disabilities who have graduated from high school with a regular high school
diploma;

(2)
The exception in
paragraph (C)(1) of this rule does not apply to children who have graduated
from high school but have not been awarded a regular high school
diploma;

(3)
Graduation from high
school with a regular high school diploma constitutes a change in placement,
requiring written prior notice in accordance with rule
3301-51-05
of the Administrative Code;

(4)
As
used in paragraphs (C)(1) to (C)(3) of this rule, the term regular high school
diploma does not include an alternative degree that is not fully aligned with
Ohio's academic content standards, such as a certificate or a general
educational development credential; and

(5)
Children with disabilities who are
eligible under Subpart H of Part B of the Individuals with Disabilities
Education Act, as amended by the Individuals with Disabilities Education
Improvement Act of 2004, December 2004 (IDEA), but who receive early
intervention services under Part C of the IDEA.

(D)
FAPE: methods and payments

(1)
Each school district of residence shall
use whatever state, local, federal, and private sources of support are
available in the school district to meet the requirements of Part B of the
IDEA. For example, if it is necessary to place a child with a disability in a
residential facility, a school district of residence could use joint agreements
between the agencies involved for sharing the cost of that placement.

(2)
Nothing in this rule relieves an insurer
or similar third party from an otherwise valid obligation to provide or to pay
for services provided to a child with a disability.

(3)
Consistent with rule
3301-51-07
of the Administrative Code, each school district must ensure that there is no
delay in implementing a child's IEP, including any case in which the payment
source for providing or paying for special education and related services to
the child is being determined.

(E)
Residential placement

If placement by the school district of residence in a public
or private residential program is necessary to provide special education and
related services to a child with a disability, the program, including
non-medical care and room and board, must be at no cost to the parents of the
child.

(F)
Assistive
technology

(1)
Each school district must
ensure that assistive technology devices or assistive technology services, or
both, as those terms are defined in rule
3301-51-01
of the Administrative Code, are made available to a child with a disability if
required as a part of the child's:

(a)
Special
education under rule
3301-51-01
of the Administrative Code;

(b)
Related services under rule
3301-51-01
of the Administrative Code; or

(c)
Supplementary aids and services under rule
3301-51-09
of the Administrative Code.

(2)
On a case-by-case basis, the use of
school-purchased assistive technology devices in a child's home or in other
settings is required if the child's IEP team determines that the child needs
access to those devices in order to receive FAPE.

(G)
Extended school year services

(1)
General

(a)
Each school district must ensure that
extended school year services are available as necessary to provide FAPE,
consistent with this rule.

(b)
Extended school year services must be provided only if a child's IEP team
determines, on an individual basis, in accordance with rule
3301-51-07
of the Administrative Code, that the services are necessary for the provision
of FAPE to the child. Additionally, the school district shall consider the
following when determining if extended school year services should be provided:

(i)
Whether extended school
year services are necessary to prevent
significant regression of skills or knowledge retained by the child so as to
seriously impede the child's progress toward the child's educational goals;
and

(ii)
Whether extended school
years services are necessary to avoid something more than adequately recoupable
regression.

(c)
In
implementing the requirements of this rule, a school district shall not:

(i)
Limit extended school year services to
particular categories of disability; or

(ii)
Unilaterally limit the type, amount, or
duration of those services.

(2)
Definition

As used in this rule, the term "extended school year services"
means special education and related services that:

(a)
Are provided to a child with a
disability:

(i)
Beyond the normal school year
of the school district;

(ii)
In
accordance with the child's IEP; and (iii) At no cost to the parents of the
child; and

(b)
Meet the
standards of the Ohio department of education.

(H)
Nonacademic services

(1)
Each school district must take steps,
including the provision of supplementary aids and services determined
appropriate and necessary by the child's IEP team, to provide nonacademic and
extracurricular services and activities in the manner necessary to afford
children with disabilities an equal opportunity for participation in those
services and activities.

(2)
Nonacademic and extracurricular services and activities shall include
counseling services, athletics, transportation, health services, recreational
activities, special interest groups or clubs sponsored by the school district,
referrals to agencies that provide assistance to individuals with disabilities,
and employment of students, including both employment by the school district
and assistance in making outside employment available.

(I)
Physical education

(1)
General

Physical education services, specially designed if necessary,
must be made available to every child with a disability receiving FAPE, unless
the school district enrolls children without disabilities and does not provide
physical education to children without disabilities in the same grades.

(2)
Regular physical education

Each child with a disability must be afforded the opportunity
to participate in the regular physical education program available to
nondisabled children unless:

(a)
The
child is enrolled full time in a separate facility; or

(b)
The child needs specially designed
physical education, as prescribed in the child's IEP.

(3)
Special physical education

If specially designed physical education is prescribed in a
child's IEP, the school district responsible for serving the child must provide
the services directly or make arrangements for those services to be provided
through other public or private programs.

(4)
Education in separate facilities

The school district responsible for serving a child with a
disability who is enrolled in a separate facility must ensure that the child
receives appropriate physical education services in compliance with this
rule.

(J)
Program options

Each school district must take steps to ensure that children
with disabilities served by the school district have available to them the
variety of educational programs and services available to nondisabled children
in the area served by the school district, including art, music, industrial
arts, consumer and homemaking education, and vocational education.

Each school district must ensure that hearing aids worn in
school by children with hearing impairments, including deafness, are
functioning properly.

(2)
External components of surgically implanted medical devices

(a)
Subject to paragraph (K)(2)(b) of this
rule, each school district must ensure that the external components of
surgically implanted medical devices are functioning properly.

(b)
For a child with a surgically implanted
medical device who is receiving special education and related services under
this chapter of the Administrative Code, a school district is not responsible
for the post-surgical maintenance, programming, or replacement of the medical
device that has been surgically implanted (or of an external component of the
surgically implanted medical device).

(L)
Placement of children by parents when
FAPE is at issue

(1)
General

This rule does not require a school district of residence to
pay for the cost of education, including special education and related
services, of a child with a disability at a nonpublic school or facility if
that school district made FAPE available to the child and the parents elected
to place the child in a nonpublic school or facility. However, the school
district must include that child in the population whose needs are addressed
consistent with rule
3301-51-08
of the Administrative Code.

(2)
Disagreements about FAPE

Disagreements between the parents and a school district of
residence regarding the availability of a program appropriate for the child,
and the question of financial reimbursement, are subject to the due process
procedures in rule
3301-51-05
of the Administrative Code.

(3)
Reimbursement for nonpublic school
placement

If the parents of a child with a disability, who previously
received special education and related services under the authority of the
school district of residence, enroll the child in a nonpublic preschool,
elementary school, or secondary school without the consent of or referral by
the school district of residence, a court or a hearing officer may require the
school district of residence to reimburse the parents for the cost of that
enrollment if the court or hearing officer finds that the school district of
residence had not made FAPE available to the child in a timely manner prior to
that enrollment and that the private placement is appropriate. A parental
placement may be found to be appropriate by a hearing officer or a court even
if it does not meet the state standards in this chapter of the Administrative
Code that apply to education provided by the school districts.

(4)
Limitation on reimbursement

The cost of reimbursement described in paragraph (L)(3) of this
rule may be reduced or denied:

(a)
If:

(i)
At the most recent IEP team meeting that
the parents attended prior to removal of the child from the public school, the
parents did not inform the IEP team that they were rejecting the placement
proposed by the school district of residence to provide FAPE to their child,
including stating their concerns and their intent to enroll their child in a
nonpublic school at public expense; or

(ii)
At least ten business days (including
any holidays that occur on a business day) prior to the removal of the child
from the public school, the parents did not give written notice to the school
district of residence of the information described in paragraph (L)(4)(a)(i) of
this rule; or

(b)
If
prior to the parents' removal of the child from the public school, the school
district of residence informed the parents, through the notice requirements
described in rule
3301-51-05
of the Administrative Code, of its intent to evaluate the child (including a
statement of the purpose of the evaluation that was appropriate and
reasonable), but the parents did not make the child available for the
evaluation; or

(c)
Upon a judicial
finding of unreasonableness with respect to actions taken by the
parents.

(5)
Exception

Notwithstanding the notice requirement in paragraph (L)(4)(a)
of this rule, the cost of reimbursement:

(a)
Must not be reduced or denied for failure
to provide the notice if:

(i)
The school
prevented the parents from providing the notice;

(ii)
The parents had not received notice,
pursuant to rule
3301-51-05
of the Administrative Code, of the notice requirement in paragraph (L)(4)(a) of
this rule; or

(iii)
Compliance with
paragraph (L)(4)(a) of this rule would likely result in physical harm to the
child.

(b)
May, in the
discretion of the court or a hearing officer, not be reduced or denied for
failure to provide this notice if:

(i)
The
parents are not literate or cannot write in English; or

(ii)
Compliance with paragraph (L)(4)(a) of
this rule would likely result in serious emotional harm to the child.

(A)
Each school district shall adopt and
implement written policies and procedures approved by the Ohio department of
education, office for exceptional children, that ensure all children with
disabilities residing within the district, including children with disabilities
who are homeless children or are wards of the state, and children with
disabilities attending nonpublic schools, regardless of the severity of their
disability, and who are in need of special education and related services are
identified, located, and evaluated as required by the Individuals with
Disabilities Education Act, as amended by the Individuals with Disabilities
Education Improvement Act of 2004, December 2004 (IDEA) and federal regulations
at 34 C.F.R. Part 300 (October 13, 2006) pertaining to child find, including
the regulations at
34 C.F.R. 300.111 and
300.646
(October 13, 2006) and as required by the provisions of this rule.

(B)
Child find

(1)
General The child find policies and
procedures that each school district adopts and implements under this rule
shall ensure that:

(a)
All children with
disabilities residing in the state, including children with disabilities who
are homeless children or are wards of the state, and children with disabilities
attending nonpublic schools, regardless of the severity of their disability,
and who are in need of special education and related services, are identified,
located, and evaluated; and

(b)
A
practical method is developed and implemented to determine which children are
currently receiving needed special education and related services.

(2)
Use of the term developmental
delay The following provisions apply with respect to implementing the child
find requirements of this rule:

(a)
The Ohio
department of education has adopted in rule
3301-51-11
of the Administrative Code a definition of "developmental delay" under
34 C.F.R. 300.8(b) (October 13, 2006)
and under that section has determined in rule
3301-51-01
of the Administrative Code that the term applies to children aged three through
five years;

(b)
A school district
is not required to adopt and use the term developmental delay for any children
within its jurisdiction;

(c)
If a
school district uses the term developmental delay for children described in
rule
3301-51-01
of the Administrative Code as experiencing developmental delays, the school
district must conform to both the state's definition of that term in rule
3301-51-11
of the Administrative Code and to the age range of three through five years of
age which is the age range subset that has been adopted by the Ohio department
of education in rule
3301-51-01
of the Administrative Code.

(3)
Other children in child find

Child find must also include:

(a)
Children who are suspected of being a
child with a disability under the definition of child with a disability in
paragraph (B)(10) of rule
3301-51-01
of the Administrative Code and in need of special education, even though they
are advancing from grade to grade; and

(b)
Highly mobile children, including migrant
children.

(4)
Construction

Nothing in the IDEA requires that children be classified by
their disability so long as each child who has a disability that is listed in
the definition of child with a disability in paragraph (B)(10) of rule
3301-51-01
of the Administrative Code and who, by reason of that disability, needs special
education and related services is regarded as a child with a disability under
Part B of the IDEA.

(C)
Disproportionality

(1)
General

The Ohio department of education and each school district must
provide for the collection and examination of data to determine if significant
disproportionality based on race and ethnicity is occurring in the state and
the school districts of the state with respect to:

(a)
The identification of children as
children with disabilities, including the identification of children as
children with disabilities in accordance with a particular impairment described
in the definition of "child with a disability" in paragraph (B)(10) of rule
3301-51-01
of the Administrative Code;

(b)
The
placement in particular educational settings of these children; and

(c)
The incidence, duration, and type of
disciplinary actions, including suspensions and expulsions.

(2)
Review and revision of
policies, practices, and procedures

In the case of a determination of significant
disproportionality with respect to the identification of children as children
with disabilities, or the placement in particular educational settings of these
children, in accordance with paragraph (C)(1) of this rule, the Ohio department
of education must:

(a)
Provide for the
review and, if appropriate, revision of the policies, procedures, and practices
used in the identification or placement to ensure that the policies,
procedures, and practices comply with the requirements of the IDEA.

(b)
Require any school district identified
under paragraph (C)(1) of this rule to reserve the maximum amount of funds
under Section 613(f) of the IDEA to provide comprehensive coordinated early
intervening services to serve children in the school district, particularly,
but not exclusively, children in those groups that were significantly
overidentified under paragraph (C)(1) of this rule; and

(c)
Require the school district to publicly
report on the revision of policies, practices, and procedures described under
paragraph (C)(2)(a) of this rule.

(D)
Data reporting

(1)
Each school district shall maintain an
education management information system and submit data to the Ohio department
of education pursuant to rule
3301-14-01
of the Administrative Code.

(2)
County boards of
developmental disabilities and state institutions operated under the Ohio
department of mental health, Ohio department of youth services, and the Ohio
central school system shall submit data reports directly to the Ohio department
of education on prescribed forms and in the prescribed manner.

(3)
The collection and use of data to meet
the requirements of this rule are subject to the confidentiality requirements
in rule
3301-51-04 of the
Administrative Code.

(A)
Each school
district, county board of developmental disabilities (county board of
DD), and
other educational agency shall adopt and implement written policies and
procedures, approved by the Ohio department of education, office for
exceptional children, that afford parents the opportunity to examine records in
accordance with the procedures of
34 C.F.R. 300.610
to 300.628 (October 13, 2006) and ensure protection of the confidentiality of
any personally identifiable information in regard to the collection, use,
storage, disclosure, retention, and destruction of that information.

(B)
Definitions

The following terms are defined as they are used in this
rule:

(1)
"Destruction" means physical
destruction or removal of personal identifiers from information so that the
information is no longer personally identifiable.

(2)
"Education records" means the type of
records covered under the definition of education records in 34 C.F.R. Part 99
( January 14, 2013) (the regulations implementing the
Family Educational Rights and Privacy Act of 1974, August 1974,
20 U.S.C. 1232g(FERPA) ).

(3)
"Participating agency" means any agency
or institution that collects, maintains, or uses personally identifiable
information, or from which information is obtained, under Part B of the
Individuals with Disabilities Education Act, as amended and specified in the
Individuals with Disabilities Education Improvement Act of 2004, December 2004
(IDEA).

(C)
Notice to
parents

(1)
The school district, county board
of DD,
and other educational agency must give notice that is adequate to fully inform
parents about the requirements to ensure that the school district, county board
of DD,
and other educational agency comply with this rule related to protecting the
confidentiality of any personally identifiable information collected, used, or
maintained under Part B of the IDEA. The notice shall include:

(a)
A description of the extent that the
notice is given in the native languages of the various population groups in the
school district, county, or other area served;

(b)
A description of the children on whom
personally identifiable information is maintained, the types of information
sought, the methods the state intends to use in gathering the information
(including the sources from whom information is gathered), and the uses to be
made of the information;

(c)
A
summary of the policies and procedures that participating agencies must follow
regarding storage, disclosure to third parties, retention, and destruction of
personally identifiable information; and

(d)
A description of all of the rights of
parents and children regarding this information, including the rights under
FERPA and implementing regulations in 34 C.F.R. Part 99 ( January 14,
2013).

(2)
Before
any major identification, location, or evaluation activity, the notice must be
published or announced in newspapers or other media, or both, with circulation
adequate to notify parents throughout the school district, county board of
DD, or
other area served of the activity.

(D)
Access rights

(1)
Each participating agency must permit
parents to inspect and review any education records relating to their children
that are collected, maintained, or used by the agency under this rule. The
agency must comply with a request without unnecessary delay and before any
meeting regarding an individualized education program (IEP), or any hearing
pursuant to rule
3301-51-05
of the Administrative Code or resolution session pursuant to rule
3301-51-05
of the Administrative Code, and in no case more than forty-five days after the
request has been made.

(2)
The
right to inspect and review education records under this rule includes:

(a)
The right to a response from the
participating agency to reasonable requests for explanations and
interpretations of the records;

(b)
The right to request that the agency provide copies of the records containing
the information if failure to provide those copies would effectively prevent
the parent from exercising the right to inspect and review the records;
and

(c)
The right to have a
representative of the parent inspect and review the records.

(3)
An agency may presume that the
parent has authority to inspect and review records relating to the parent's
child unless the agency has been advised that the parent does not have the
authority under applicable state law governing such matters as guardianship,
separation, and divorce.

(E)
Record of access

Each participating agency must keep a record of parties
obtaining access to education records collected, maintained, or used under Part
B of the IDEA (except access by parents and authorized employees of the
participating agency), including the name of the party, the date access was
given, and the purpose for which the party is authorized to use the
records.

(F)
Records on
more than one child

If any education record includes information on more than one
child, the parents of those children have the right to inspect and review only
the information relating to their child or to be informed of that specific
information.

(G)
List of
types and locations of information Each participating agency must provide
parents on request a list of the types and locations of education records
collected, maintained, or used by the agency.

(H)
Fees

(1)
Each participating agency may charge a fee for copies of records that are made
for parents under this rule if the fee does not effectively prevent the parents
from exercising their right to inspect and review those records.

(2)
A participating agency shall not charge a
fee to search for or to retrieve information under this rule.

(I)
Amendment of records at
parent's request

(1)
A parent who believes
that information in the education records collected, maintained, or used under
this rule is inaccurate or misleading or violates the privacy or other rights
of the child may request the participating agency that maintains the
information to amend the information.

(2)
The agency must decide whether to amend
the information in accordance with the request within a reasonable period of
time of receipt of the request.

(3)
If the agency decides to refuse to amend the information in accordance with the
request, it must inform the parent of the refusal and advise the parent of the
right to a hearing under this rule.

(J)
Opportunity for a hearing

The agency must, on request, provide an opportunity for a
hearing to challenge information in education records to ensure that it is not
inaccurate, misleading, or otherwise in violation of the privacy or other
rights of the child.

(K)
Result of hearing

(1)
If, as a result of the
hearing, the agency decides that the information is inaccurate, misleading or
otherwise in violation of the privacy or other rights of the child, it must
amend the information accordingly and so inform the parent in
writing.

(2)
If, as a result of the
hearing, the agency decides that the information is not inaccurate, misleading,
or otherwise in violation of the privacy or other rights of the child, it must
inform the parent of the parent's right to place in the records the agency
maintains on the child a statement commenting on the information or setting
forth any reasons for disagreeing with the decision of the agency.

(3)
Any explanation placed in the records of
the child under this rule must:

(a)
Be
maintained by the agency as part of the records of the child as long as the
record or contested portion is maintained by the agency; and

(b)
If the records of the child or the
contested portion is disclosed by the agency to any party, the explanation must
also be disclosed to the party.

(L)
Hearing procedures

A hearing held under this rule must be conducted according to
the procedures in
34 C.F.R. 99.22 ( January 14, 2013). The records
hearing shall be held within a reasonable period of time after the school
district, county board of DD or other educational agency has received the
request.

(1)
The parents shall be
given notice of the date, time, and place reasonably in advance of the
hearing.

(2)
The records hearing
shall be conducted by any individual, including an official of the school
district, county board of DD or other educational agency who does not have a
direct interest in the outcome of the hearing.

(3)
The parents shall be afforded a full and
fair opportunity to present evidence relevant to the content of the child's
education records and the information the parent believes is inaccurate or
misleading or violates the privacy or other rights of the child.

(4)
The parents may, at their own expense, be
assisted or represented by one or more individuals of their choice, including
an attorney.

(5)
The school
district, county board of DD or other educational agency shall make its decision
in writing within a reasonable period of time after the hearing.

(6)
The decision of the school district,
county board of DD or other educational agency shall be based solely
upon the evidence presented at the hearing and shall include a summary of the
evidence and the reasons for the decision.

(M)
Consent

(1)
Parental consent must be obtained before
personally identifiable information is disclosed to parties, other than
officials of participating agencies in accordance with this rule, unless the
information is contained in education records, and the disclosure is authorized
without parental consent under 34 C.F.R. Part 99 (July 1, 2005).

The parent's consent must be in writing, signed, and dated and
must:

(a)
Specify the records to be
disclosed;

(b)
State the purpose of
the disclosure; and

(c)
Identify
the party or class of parties to whom the disclosure may be made.

(2)
Except as provided in
paragraphs (M)(2)(a) and (M)(2)(b) of this rule, parental consent is not
required before personally identifiable information is released to officials of
participating agencies for purposes of meeting a requirement of this rule and
34 C.F.R. Part 300 (October 13, 2006).

(a)
Parental consent, or the consent of an eligible child who has reached the age
of majority under Ohio law, must be obtained before personally identifiable
information is released to officials of participating agencies providing or
paying for transition services in accordance with rule
3301-51-07
of the Administrative Code.

(b)
If
a child is enrolled, or is going to enroll in a nonpublic school that is not
located in the school district of the parent's residence, parental consent must
be obtained before any personally identifiable information about the child is
released between officials in the school district where the nonpublic school is
located and officials in the school district of the parent's
residence.

(N)
Safeguards

(1)
Each participating agency must protect
the confidentiality of personally identifiable information at collection,
storage, disclosure, and destruction stages.

(2)
One official at each participating agency
must assume responsibility for ensuring the confidentiality of any personally
identifiable information.

(3)
All
persons collecting or using personally identifiable information must receive
training or instruction regarding the policies and procedures of the school
district, county board of DD, and other educational agency under 34 C.F.R. Part
99 ( January 14, 2013).

(4)
Each participating agency must maintain
for public inspection a current listing of the names and positions of those
employees within the agency who may have access to personally identifiable
information.

(O)
Destruction of information

(1)
The public
agency must inform parents when personally identifiable information collected,
maintained, or used under this rule is no longer needed to provide educational
services to the child.

(2)
The
information must be destroyed at the request of the parents. However, a
permanent record of a student's name, address, telephone number, grades,
attendance record, classes attended, grade level completed, and year completed
shall be maintained without time limitation.

(P)
Children's rights

(1)
The school district, county board of
DD, and
other educational agency must have in effect policies and procedures regarding
the extent to which children are afforded rights of privacy similar to those
afforded to parents, taking into consideration the age of the child and type or
severity of disability.

(2)
Under
the regulations for FERPA in
34 C.F.R. 99.5(a) ( January 14, 2013), the rights of
parents regarding education records are transferred to the student at age
eighteen.

(3)
If the rights
accorded to parents under Part B of the IDEA are transferred to a student who
reaches the age of majority, consistent with rule
3301-51-05
of the Administrative Code, the rights regarding education records under this
rule must also be transferred to the student. However, the school district must
provide any notice required under rule
3301-51-05
of the Administrative Code to the student and the parents.

(Q)
Disciplinary information

(1)
A school district, county board of
DD, and
other educational agency shall include in the records of a child with a
disability a statement of any current or previous disciplinary action that has
been taken against the child and transmit the statement to the same extent that
the disciplinary information is included in, and transmitted with, the student
records of nondisabled children.

(2)
When a child transfers from one school,
county board of DD, or other educational agency to another, the
transmission of any of the child's records must include both the child's
current IEP and any statement of current or previous disciplinary action that
has been taken against the child.

(3)
The statement required in paragraphs
(Q)(1) and (Q)(2) of this rule:

(a)
Shall
specify the circumstances that resulted in the disciplinary action and provide
a description of the disciplinary action taken if the disciplinary action was
taken because the child:

(i)
Carried a weapon
to or possessed a weapon at school, on school premises, or to or at a school
function under the jurisdiction of a school district, county board of
DD, and
other educational agency;

(ii)
Knowingly possessed or used illegal drugs, or sold or solicited the sale of a
controlled substance, while at school, on school premises, or at a school
function under the jurisdiction of a school district, county board of
DD, and
other educational agency; or

(iii)
Inflicted serious bodily injury upon another person while at school, on school
premises, or at a school function under the jurisdiction of a school district,
county board of DD, and other educational agency.

(b)
Shall include any information that is
relevant to the safety of the child and other individuals involved with the
child; and

(c)
May include a
description of any other behavior engaged in by the child that required
disciplinary action, and a description of the disciplinary action
taken.

(R)
Referral to and action by law enforcement and judicial authorities

(1)
Rule of construction

Nothing in this rule prohibits a school district, county board
of DD,
and other educational agency from reporting a crime committed by a child with a
disability to appropriate authorities or prevents state law enforcement and
judicial authorities from exercising their responsibilities with regard to the
application of federal and state law to crimes committed by a child with a
disability.

(2)
Transmittal
of records

(a)
A school district, county board
of DD,
and other educational agency reporting a crime committed by a child with a
disability must ensure that copies of the special education and disciplinary
records of the child are transmitted for consideration by the appropriate
authorities to whom the agency reports the crime.

(b)
A school district, county board of
DD, and
other educational agency reporting a crime under this rule shall transmit
copies of the child's special education and disciplinary records only to the
extent that the transmission is permitted by the Family Educational Rights and
Privacy Act of 1974, August 1974,
20 U.S.C. 1232g(FERPA).

(A)
Each school district shall adopt and
implement written policies and procedures approved by the Ohio department of
education, office for exceptional children, to ensure that children with
disabilities and their parents are provided procedural safeguards.

(B)
Each school district of residence shall
adopt and implement written policies and procedures approved by the Ohio
department of education, office for exceptional children, to ensure that
children with disabilities and their parents and public agencies are provided
an opportunity to resolve disputes regarding identification, evaluation, or
educational placement of a child with a disability or the provision of a free
appropriate public education (FAPE).

(C)
Parental consent

(1)
Parental consent for initial evaluation

(a)
The school district proposing to conduct
an initial evaluation to determine if a child qualifies as a child with a
disability under the definition of "child with a disability" in rule
3301-51-01
of the Administrative Code must, after providing notice consistent with the
requirements of this rule, obtain informed consent, consistent with the
definition of "consent" in rule
3301-51-01
of the Administrative Code, from the parent of the child before conducting the
evaluation.

(b)
Parental consent
for initial evaluation must not be construed as consent for initial provision
of special education and related services.

(c)
The school district must make reasonable
efforts to obtain the informed consent from the parent for an initial
evaluation to determine whether the child is a child with a
disability.

(d)
For initial
evaluations only, if the child is a ward of the state and is not residing with
the child's parent, the school district is not required to obtain informed
consent from the parent for an initial evaluation to determine whether the
child is a child with a disability if:

(i)
Despite reasonable efforts to do so, the school district cannot discover the
whereabouts of the parent of the child;

(ii)
The rights of the parents of the child
have been terminated in accordance with state law; or

(iii)
The rights of the parent to make
educational decisions have been subrogated by a judge in accordance with state
law and consent for an initial evaluation has been given by an individual
appointed by the judge to represent the child.

(e)
If the parent of a child enrolled in a
school district or seeking to be enrolled in a school district does not provide
consent for initial evaluation under this rule, or the parent fails to respond
to a request to provide consent, the school district of residence may, but is
not required to, pursue the initial evaluation of the child by utilizing the
procedural safeguards in Subpart E of Part B of the Individuals with
Disabilities Education Act, as amended by the Individuals with Disabilities
Education Improvement Act of 2004, December 2004 (IDEA) (including the
mediation procedures or the due process procedures under this rule).

The school district does not violate its obligation under rule
3301-51-03 of the
Administrative Code for child find and under rule
3301-51-06 of the
Administrative Code for evaluations if it declines to pursue the
evaluation.

(2)
Parental consent for services

(a)
A school
district of residence that is responsible for making FAPE available to a child
with a disability must obtain informed consent from the parent of the child
before the initial provision of special education and related services to the
child.

(b)
The school district of
residence must make reasonable efforts to obtain informed consent from the
parent for the initial provision of special education and related services to
the child.

(c)
If the parent of the
child refuses to consent to the initial provision of special education and
related services, or the parent fails to respond to a request to provide
consent for the initial provision of special education and related services,
the school district of residence:

(i)
Shall
not use the procedures in Subpart E of Part B of the IDEA, including the
mediation procedures or the due process procedures described in this rule, in
order to obtain agreement or a ruling that services may be provided to the
child;

(ii)
Will not be considered
to be in violation of the requirement to make FAPE available to the child for
the failure to provide the child with the special education and related
services for which the school district of residence requests consent;
and

(iii)
Is not required to
convene an individualized education program (IEP) team meeting or develop an
IEP under rule
3301-51-07
of the Administrative Code for the child for the special education and related
services for which the school district of residence requests such
consent.

(3)
Revocation of parental consent. If, at any time subsequent to the initial
provision of special education and related services, the parent of a child
revokes consent in writing for the continued provision of special education and
related services, the school district:

(a)
Shall not continue to provide special education and related services to the
child, but shall provide prior written notice in accordance with paragraph (H)
of this rule before ceasing the provision of special education and related
services;

(b)
Shall not use the
procedures in Subpart E of Part B of the IDEA, including the mediation
procedures or the due process procedures described in this rule, in order to
obtain agreement or a ruling that the services shall be provided to the
child;

(c)
Shall not be considered
to be in violation of the requirement to make FAPE available to the child for
the failure to provide the child with further special education and related
services; and

(d)
Shall not be
required to convene an individualized education program (IEP) team meeting or
develop an IEP pursuant to rule
3301-51-07
of the Administrative Code for the child for further provision of special
education and related services.

(4)
Parental consent for reevaluations

(a)
Subject to paragraph (C)(4)(b) of this
rule, each school district:

(i)
Must obtain
informed parental consent, in accordance with paragraph (C)(1) of this rule,
prior to conducting any reevaluation of a child with a disability.

(ii)
If the parent refuses to consent to the
reevaluation, the school district of residence may, but is not required to,
pursue the reevaluation by using the consent override procedures described in
paragraph (C)(1)(e) of this rule.

(iii)
The school district of residence does
not violate its obligation under rule
3301-51-03 of the
Administrative Code for child find and under rule
3301-51-06 of the
Administrative Code for reevaluations if it declines to pursue the
reevaluation.

(b)
The
informed parental consent described in paragraph (C)(4)(a) of this rule need
not be obtained if the school district can demonstrate that:

(i)
It made reasonable efforts to obtain such
consent; and

(ii)
The child's
parent has failed to respond.

(5)
Parental consent for a change of
placement

(a)
A "change of placement" means a
change from one option on the continuum of alternative placements to
another.

(b)
Informed parental
consent must be obtained before making a change of placement of a child with a
disability.

(c)
Informed parental
consent need not be obtained before:

(i)
A
change of placement if the school district of residence can demonstrate that it
has made reasonable efforts, as described in rule
3301-51-07
of the Administrative Code, to obtain consent, and the child's parent has
failed to respond.

(ii)
A change of
placement of a child with a disability that is the result of a disciplinary
action taken in accordance with paragraph (K)(20) of this rule.

(iii)
Reviewing existing data as part of an
evaluation or a reevaluation; or

(iv)
Administering a test or other evaluation
that is administered to all children unless, before administration of that test
or evaluation, consent is required of parents of all children.

(6)
Parental consent for use of public benefits for
insurance

(a)
Informed parental consent must be obtained prior to the initial use of public
benefits or insurance to pay for special education and related services with
notice of rights under this provision provided annually.

(b)
Parental refusal
or withdrawal of consent for the use of public benefits or insurance to pay for
special education and related services may not be used by a district to deny
the child or parent access to required services at no cost to the
parent.

(7)
Other consent
requirements

(a)
A school district may not
use a parent's refusal to consent to one service or activity under paragraph
(C)(1) or (C)(5)(b) of this rule to deny the parent or child any other service,
benefit, or activity of the school district, except as required by this
rule.

(b)
To meet the reasonable
efforts requirement in paragraphs (C)(1)(c), (C)(1)(d)(i), (C)(2)(b),
(C)(4)(b)(i), and (C)(5)(c)(i) of this rule, the school district must document
its attempts to obtain parental consent using the procedures in rule
3301-51-07
of the Administrative Code.

(D)
Transfer of parental rights at age of
majority

(1)
Beginning no later than one year before a child with a disability (except for a
child with a disability who has been determined to be incompetent under Ohio
law) reaches the age of majority under Ohio law (eighteen years of age), the
IEP must include a statement that the child and parent have been informed of
the child's rights under Part B of the Act that will transfer to the child upon
reaching the age of majority.

(2)
When a child with
a disability reaches the age of majority under Ohio law (eighteen years of age)
that applies to all children (except for a child with a disability who has been
determined to be incompetent under Ohio law):

(a)
All rights accorded to parents under Part
B of the IDEA and Chapter 3323. of the Revised Code transfer to the child;

(b)
All rights
accorded to parents under Part B of the IDEA and Chapter 3323. of the Revised
Code transfer to children who are incarcerated in an adult or juvenile, state
or local correctional institution; and

(c)
The school district of residence must provide the
notice required by this rule to notify both the child and the parents of the
transfer of rights.

(E)
Surrogate parents

(1)
General

Each school district must ensure that the rights of a child
are protected when:

(a)
No parent (as
defined in rule
3301-51-01
of the Administrative Code) can be identified;

(b)
The school district, after reasonable
efforts, cannot locate a parent;

(c)
The child is a ward of the state under
the laws of Ohio; or

(d)
The child
is an unaccompanied homeless youth as defined in Section 725(6) of the
McKinney-Vento Homeless Assistance Act (
42 U.S.C. 11434a(6) ), as
amended and specified in Title X, Part C, of the No Child Left Behind Act of
2001, January 2002,
42 U.S.C. 11431.

(2)
Duties of the school district

The duties of a school district of residence under paragraph
(E)(1) of this rule include the assignment of an individual to act as a
surrogate for the parents. This must include a method:

(a)
For determining whether a child needs a
surrogate parent; and

(b)
For
assigning a surrogate parent to the child.

(3)
Wards of the state

In the case of a child who is a ward of the state, the
surrogate parent alternatively may be appointed by the judge overseeing the
child's case, provided that the surrogate meets the requirements in paragraphs
(E)(4)(c)(i), (E)(4)(c)(iv), and (E)(5) of this rule.

(4)
Criteria for selection of surrogate
parents

(a)
A surrogate parent shall be
assigned as soon as possible but no later than thirty days of the date that it
is determined that the child is in need of the surrogate.

(b)
The school district of residence
maintains the ultimate responsibility for the assignment of a surrogate parent.
If requested by the school district of residence and mutually agreed upon, the
school district of attendance, county board of developmental disabilities
(county board of DD), or other educational agency may appoint the surrogate
parent.

(c)
The school district of
residence must ensure that a person selected as a surrogate parent:

(i)
Is not an employee of the Ohio department
of education, the school district, or any other agency that is involved in the
education or care of the child;

(ii)
Has no personal or professional interest
that conflicts with the interest of the child the surrogate parent
represents;

(iii)
Has knowledge and
skills that ensure adequate representation of the child; and

(iv)
Has successfully completed the training
prescribed by the Ohio department of education prior to acting on behalf of the
child.

(5)
Non-employee requirement; compensation

A person who is otherwise qualified to be a surrogate parent
under paragraph (E)(4) of this rule is not an employee of the school district
solely because the person is paid by the school district to serve as a
surrogate parent.

(6)
Civil
damages

Pursuant to section
3323.051
of the Revised Code, neither the surrogate parent nor the authority that
assigned the surrogate parent shall be liable in civil damages for acts of the
surrogate parent unless such acts constitute willful or wanton
misconduct,

(7)
Appointment
of surrogate by a judge

If a surrogate parent is appointed by a judge overseeing the
child's case, upon the request of the judge, the school district of residence
will confirm that the person appointed meets the requirements in paragraphs
(E)(4)(c)(i), (E)(4)(c)(iv), and (E)(5) of this rule.

(8)
Child who has reached age of majority

A child who has reached the age of majority may request a
surrogate parent.

(9)
Unaccompanied homeless youth

In the case of a child who is an unaccompanied homeless youth,
appropriate staff of emergency shelters, transitional shelters, independent
living programs, and street outreach programs may be appointed as temporary
surrogate parents without regard to paragraph (E)(4)(c)(i) of this rule, until
a surrogate parent can be appointed that meets all of the requirements of
paragraph (E)(4) of this rule.

(10)
Surrogate parent responsibilities

The surrogate parent may represent the child in all matters
relating to:

(a)
The identification,
evaluation, and educational placement of the child; and

(b)
The provision of FAPE to the
child.

(F)
Opportunity to examine records; parent participation in meetings

(1)
The parents of a child with a disability must be
afforded, in accordance with the procedures of rule
3301-51-04 of the
Administrative Code, an opportunity to inspect and review all education records
with respect to:

(a)
The identification, evaluation, and educational
placement of the child; and

(b)
The provision of
FAPE to the child.

(2)
Parent participation in meetings

(a)
The parents of a child with a disability
must be afforded an opportunity to participate in meetings with respect to:

(i)
The identification, evaluation, and
educational placement of the child; and

(ii)
The provision of FAPE to the
child.

(b)
Each school
district must provide notice consistent with the parent participation
requirements of rule
3301-51-07
of the Administrative Code to ensure that parents of children with disabilities
have the opportunity to participate in meetings described in paragraph
(F)(2)(a) of this rule.

(c)
A
meeting does not include informal or unscheduled conversations involving school
district personnel and conversations on issues such as teaching methodology,
lesson plans, or coordination of service provision. A meeting also does not
include preparatory activities that school district personnel engage in to
develop a proposal or response to a parent proposal that will be discussed at a
later meeting.

(3)
Parent involvement in placement decisions

(a)
Each school district must ensure that a parent of each child with a disability
is a member of any group that makes decisions on the educational placement of
the parent's child.

(b)
In
implementing the requirements of paragraph (F)(3)(a) of this rule, the school
district must use procedures consistent with the procedures described in the
parent participation requirements of rule
3301-51-07
of the Administrative Code.

(c)
If
neither parent can participate in a meeting in which a decision is to be made
relating to the educational placement of their child, the school district must
use other methods to ensure their participation, including individual or
conference telephone calls, or video conferencing.

(d)
A placement decision may be made by a
group without the involvement of a parent, if the school district is unable to
obtain the parent's participation in the decision. In this case, the school
district must have a record of its attempt to ensure their
involvement.

(G)
Independent educational evaluation

(1)
General

(a)
The parents of a child with a disability
have the right under this rule to obtain an independent educational evaluation
of the child, subject to paragraphs (G)(2) to (G)(5) of this rule.

(b)
Each school district of residence must
provide to parents, upon request for an independent educational evaluation,
information about where an independent educational evaluation may be obtained,
and the district's criteria applicable for independent educational evaluations
as set forth in paragraph (G)(5) of this rule.

(c)
The following terms are defined as they
are used in this rule:

(i)
"Independent
educational evaluation" means an evaluation conducted by a qualified examiner
who is not employed by the school district responsible for the education of the
child in question; and

(ii)
"Public
expense" means that the school district of residence either pays for the full
cost of the evaluation or ensures that the evaluation is otherwise provided at
no cost to the parent, consistent with rule
3301-51-02
of the Administrative Code.

(2)
Parent right to evaluation at public
expense

(a)
A parent has the right to an
independent educational evaluation at public expense if the parent disagrees
with an evaluation obtained by the school district of residence, subject to the
conditions in paragraphs (G)(2)(b) to (G)(2)(d) of this rule.

(b)
If a parent requests an independent
educational evaluation at public expense, the school district of residence
must, without unnecessary delay, either:

(i)
File a due process complaint to request a hearing to show that its evaluation
is appropriate; or

(ii)
Ensure that
an independent educational evaluation is provided at public expense, unless the
school district of residence demonstrates in a hearing pursuant to paragraphs
(K)(2) and (K)(7) to (K)(13) of this rule that the evaluation obtained by the
parent did not meet district criteria.

(c)
If the school district files a due
process complaint notice to request a hearing and the final decision is that
the school district's evaluation is appropriate, the parent still has the right
to an independent educational evaluation, but not at public expense.

(d)
If a parent requests an independent
educational evaluation, the school district of residence may ask for the
parent's reason why the parent objects to the public evaluation. However, the
school district may not require the parent to provide an explanation and may
not unreasonably delay either providing the independent educational evaluation
at public expense or filing a due process complaint to request a due process
hearing to defend the public evaluation.

(e)
A parent is entitled to only one
independent educational evaluation at public expense each time the school
district conducts an evaluation with which the parent disagrees.

(3)
Parent-initiated evaluations

If the parent obtains an independent educational evaluation at
public expense or shares with the school district an evaluation obtained at
private expense, the results of the evaluation:

(a)
Must be considered by the school district
of residence, if it meets district criteria, in any decision made with respect
to the provision of FAPE to the child; and

(b)
May be presented by any party as evidence
at a hearing on a due process complaint under Subpart E of Part B of the IDEA
regarding that child.

(4)
Requests for evaluations by hearing
officers

If a hearing officer requests an independent educational
evaluation as part of a hearing on a due process complaint, the cost of the
evaluation must be at public expense.

(5)
School district criteria

(a)
If an independent educational evaluation
is at public expense, the criteria under which the evaluation is obtained,
including the location of the evaluation and the qualifications of the
examiner, must be the same as the criteria that the school district of
residence uses when it initiates an evaluation, to the extent those criteria
are consistent with the parent's right to an independent educational
evaluation.

(b)
Except for the
criteria described in paragraph (G)(5)(a) of this rule, a school district of
residence may not impose conditions or timelines related to obtaining an
independent educational evaluation at public expense.

(H)
Prior notice by the school
district; content of notice

(1)
Notice

Written notice that meets the requirements of paragraph (H)(2)
of this rule must be given to the parents of a child with a disability a
reasonable time before the school district of residence:

(a)
Proposes to initiate or change the
identification, evaluation, or educational placement of the child or the
provision of FAPE to the child; or

(b)
Refuses to initiate or change the
identification, evaluation, or educational placement of the child or the
provision of FAPE to the child.

(2)
Content of notice

The notice required under paragraph (H)(1) of this rule must
include:

(a)
A description of the
action proposed or refused by the school district;

(b)
An explanation of why the school district
proposes or refuses to take the action;

(c)
A description of each evaluation
procedure, assessment, record, or report the school district used as a basis
for the proposed or refused action;

(d)
A statement that the parents of a child
with a disability have protection under the procedural safeguards of this rule
and, if this notice is not an initial referral for evaluation, the means by
which a copy of a description of the procedural safeguards can be
obtained;

(e)
Sources for parents
to contact to obtain assistance in understanding the provisions of this
rule;

(f)
A description of other
options that the IEP team considered and the reasons why those options were
rejected; and

(g)
A description of
other factors that are relevant to the school district's proposal or
refusal.

(3)
Notice in
understandable language

(a)
The notice
required under paragraph (H)(1) of this rule must be:

(i)
Written in language understandable to the
general public; and

(ii)
Provided
in the native language of the parent or other mode of communication used by the
parent, unless it is clearly not feasible to do so.

(b)
If the native language or other mode of
communication of the parent is not a written language, the school district must
take steps to ensure:

(i)
That the notice is
translated orally or by other means to the parent in the parent's native
language or other mode of communication;

(ii)
That the parent understands the content
of the notice; and

(iii)
That there
is written evidence that the requirements in paragraphs (H)(3)(b)(i) and
(H)(3)(b)(ii) of this rule have been met.

(4)
Additional notice requirements

(a)
Prior written notice shall be provided to
the parents of a child with a suspected or confirmed disability within thirty
days of the date of referral.

(b)
Prior written notice shall be provided to the parents of a child with a
suspected or confirmed disability prior to a change of placement that is a
result of a disciplinary action.

(I)
Procedural safeguards notice

(1)
General

A copy of the procedural safeguards available to the parents
of a child with a disability must be given to the parents only one time a
school year, except that a copy also must be given to the parents:

(a)
Upon initial referral or parent request
for evaluation;

(b)
Upon receipt of
the first due process complaint under paragraph (K)(7) of this rule in a school
year;

(c)
In accordance with the
discipline procedures in paragraph (K)(20) of this rule; and

(d)
Upon request by a parent.

(2)
Internet web site

A school district may place a current copy of the procedural
safeguards notice on its internet web site if a web site exists, but the school
district must still provide parents a printed copy of the procedural safeguards
notice.

(3)
Contents of
notice

The procedural safeguards notice must include a full
explanation of all of the procedural safeguards available under rule
3301-51-02
of the Administrative Code, rule
3301-51-04 of the
Administrative Code, and this rule including:

(a)
Independent educational
evaluations;

(b)
Prior written
notice;

(c)
Parental
consent;

(d)
Access to education
records;

(e)
Opportunity to present
and resolve complaints through the due process complaint and state complaint
procedures, including:

(i)
The time period in
which to file a complaint;

(ii)
The
opportunity for the school district of residence to resolve the complaint;
and

(iii)
The difference between
the due process complaint and the state complaint procedures, including the
jurisdiction of each procedure, what issues may be raised, filing and
decisional timelines, and relevant procedures;

(f)
The availability of mediation;

(g)
The child's placement during the pendency
of any due process complaint;

(h)
Procedures for children who are subject to placement in an interim alternative
educational setting;

(i)
Requirements for unilateral placement by parents of children in nonpublic
schools at public expense;

(j)
Hearings on due process complaints, including requirements for disclosure of
evaluation results and recommendations;

(k)
State-level appeals;

(l)
Civil actions, including the time period
in which to file those actions; and

(m)
Attorneys' fees.

(4)
Notice in understandable language

The notice required under paragraph (I)(1) of this rule must
meet the requirements of paragraph (H)(3) of this rule.

(J)
Electronic mail

A parent of a child with a disability may elect to receive
notices required by this rule by an electronic mail communication, if the
school district makes that option available.

(K)
Conflict resolution

(1)
Administrative reviews

(a)
Administrative reviews are recommended,
but cannot be used to delay or deny an impartial due process hearing that has
been requested in writing or to deny any other rights afforded under this
chapter of the Administrative Code.

(b)
The child's parent or educational agency
other than the school district may request an opportunity to present complaints
to the superintendent.

(i)
Within twenty
school days of receipt of a complaint, the superintendent, or the
superintendent's designee, without undue delay and at a time and place
convenient to all parties, shall conduct a review, may hold an administrative
hearing, and shall notify all parties in writing of the decision.

(ii)
Every effort should be made in the
review to resolve any disagreements.

(iii)
All parties have the right to invite
others to participate in the administrative review, including legal
counsel.

(2)
Model forms

(a)
The Ohio department of
education must develop model forms to assist parents and public agencies in
filing a due process complaint in accordance with paragraphs (K)(7)(a) and
(K)(8)(a) to (K)(8)(c) of this rule and to assist parents and other parties in
filing a state complaint under paragraphs (K)(4) to (K)(6) of this rule.
However, the Ohio department of education or school district of residence may
not require the use of the model forms.

(b)
Parents, school districts, public
agencies, and other parties may use the appropriate model form described in
paragraph (K)(2)(a) of this rule, or another form or other document, so long as
the form or document that is used meets, as appropriate, the content
requirements in paragraph (K)(8)(b) of this rule for filing a due process
complaint, or the requirements in paragraph (K)(6)(b) of this rule for filing a
state complaint.

(3)
Mediation

(a)
General

The Ohio department of education shall establish state
mediation procedures. Additionally, each school district must ensure that
procedures are established and implemented to allow parties to disputes
involving any matter under Part B of the IDEA, including matters arising prior
to the filing of a due process complaint, to resolve disputes through a
mediation process.

(b)
Requirements The procedures must meet the following requirements:

(i)
The procedures must ensure that the
mediation process:

(a)
Is voluntary on the
part of the parties;

(b)
Is not
used to deny or delay a parent's right to a hearing on the parent's due process
complaint, or to deny any other rights afforded under Part B of the IDEA;
and

(c)
Is conducted by a qualified
and impartial mediator who is trained in effective mediation
techniques.

(ii)
A
school district of residence may establish procedures to offer to parents and
schools that choose not to use the mediation process, an opportunity to meet,
at a time and location convenient to the parents, with a disinterested party:

(a)
Who is under contract with an appropriate
alternative dispute resolution entity, or a parent training and information
center or community parent resource center in the state established under
Section 671 or 672 of the IDEA; and

(b)
Who would explain the benefits of, and
encourage the use of, the mediation process to the parents.

(iii)
The Ohio department of
education shall maintain a list of individuals who are qualified mediators and
knowledgeable in laws and regulations relating to the provision of special
education and related services.

(iv)
The Ohio department of education shall
select mediators on a random, rotational, or other impartial basis. Both
parties to the mediation must be involved in selecting the mediators and agree
with the selection.

(v)
The Ohio
department of education shall bear the cost of the mediation process, including
the costs of meetings described in paragraph (K)(3)(b)(ii) of this
rule.

(vi)
Each session in the
mediation process must be scheduled in a timely manner and must be held in a
location that is convenient to the parties to the dispute.

(vii)
If the parties resolve a dispute
through the mediation process, the parties must execute a legally binding
agreement that sets forth that resolution and that:

(a)
States that all discussions that occurred
during the mediation process will remain confidential and may not be used as
evidence in any subsequent due process hearing or civil proceeding;
and

(b)
Is signed by both the
parent and a representative of the school district who has the authority to
bind such school district.

(viii)
A written, signed mediation agreement
under this paragraph is enforceable in any state court of competent
jurisdiction or in a district court of the United States.

(ix)
If the mediation requires changes in the
IEP, the IEP team shall be convened to incorporate changes into the IEP within
twenty school days following the mediation agreement or as agreed to in the
mediation agreement.

(x)
No part of
the mediation discussion or sessions may be electronically recorded.
Discussions that occur during the mediation process must be confidential and
may not be used as evidence in any subsequent due process hearing or civil
proceeding of any federal court or state court of a state receiving assistance
under the IDEA. The mediator may not be called as a witness in future
proceedings related to the mediation sessions.

(c)
Impartiality of mediator

(i)
An individual who serves as a mediator
under this rule:

(a)
May not be an employee of
the Ohio department of education or any school district or agency that is
involved in the education or care of the child; and

(b)
Must not have a personal or professional
interest that conflicts with the person's objectivity.

(ii)
A person who otherwise qualifies as a
mediator is not an employee of a school district of residence or state agency
that receives a subgrant under Section 611 of the IDEA solely because the
person is paid by the agency to serve as a mediator.

(4)
Adoption of state complaint
procedures

(a)
General

The Ohio department of education shall adopt written
procedures for:

(i)
Resolving any
complaint, including a complaint filed by an organization or individual from
another state, that meets the requirements of paragraph (K)(6) of this rule by:

(a)
Providing for the filing of a complaint
with the Ohio department of education; and

(b)
At the Ohio department of education's
discretion, providing for the filing of a complaint with a school district of
residence and the right to have the Ohio department of education review the
school district of residence's decision on the complaint; and

(ii)
Widely disseminating to
parents and other interested individuals, including parent training and
information centers, protection and advocacy agencies, independent living
centers, and other appropriate entities, the state procedures under paragraphs
(K)(4) to (K)(6) of this rule.

(b)
Remedies for denial of appropriate
services

In resolving a complaint in which the Ohio department of
education has found a failure to provide appropriate services, the Ohio
department of education, pursuant to its general supervisory authority under
Part B of the IDEA, must address:

(i)
The failure to provide appropriate services, including corrective action
appropriate to address the needs of the child (such as compensatory services or
monetary reimbursement); and

(ii)
Appropriate future provision of services for all children with
disabilities.

(5)
Minimum state complaint procedures

(a)
Time limit; minimum procedures

The Ohio department of education shall include in its
complaint procedures a time limit of sixty days after a complaint is filed
under paragraph (K)(6) of this rule to:

(i)
Carry out an independent on-site
investigation, if the Ohio department of education determines that an
investigation is necessary;

(ii)
Give the complainant the opportunity to submit additional information, either
orally or in writing, about the allegations in the complaint;

(iii)
Provide the school district of
residence with the opportunity to respond to the complaint, including, at a
minimum:

(a)
At the discretion of the school
district of residence, a proposal to resolve the complaint; and

(b)
An opportunity for a parent who has filed
a complaint and the school district of residence to voluntarily engage in
mediation consistent with paragraph (K)(3) of this rule;

(iv)
Review all relevant information and make
an independent determination as to whether the school district is violating a
requirement of Part B of the IDEA or of this rule; and

(v)
Issue a written decision to the
complainant that addresses each allegation in the complaint and contains:

(a)
Findings of fact and conclusions;
and

(b)
The reasons for the Ohio
department of education's final decision.

(b)
Time extension; final decision;
implementation

The Ohio department of education's procedures described in
paragraph (K)(5)(a) of this rule also shall:

(i)
Permit an extension of the time limit
under paragraph (K)(5)(a) of this rule only if:

(a)
Exceptional circumstances exist with
respect to a particular complaint; or

(b)
The parent and the school district of
residence involved agree to extend the time to engage in mediation pursuant to
paragraph (K)(5)(a)(iii)(b) of this rule, or to engage in other alternative
means of dispute resolution, including, but not limited to, an administrative
review; and

(ii)
Include
procedures for effective implementation of the Ohio department of education's
final decision, if needed, including:

(a)
Technical assistance activities;

(b)
Negotiations; and

(c)
Corrective actions to achieve
compliance.

(c)
Complaints and due process hearings filed
under this rule

(i)
If a written complaint is
received that is also the subject of a due process hearing under this rule, or
contains multiple issues of which one or more are part of that hearing, the
Ohio department of education shall set aside any part of the complaint that is
being addressed in the due process hearing until the conclusion of the hearing.
However, any issue in the complaint that is not a part of the due process
action must be resolved using the time limit and procedures described in
paragraphs (K)(5)(a) and (K)(5)(b) of this rule.

(ii)
If an issue raised in a complaint filed
under this rule has previously been decided in a due process hearing involving
the same parties:

(a)
The due process hearing
decision is binding on that issue; and

(b)
The Ohio department of education shall
inform the complainant to that effect.

(iii)
A complaint alleging a school district
of residence's failure to implement a due process hearing decision shall be
resolved by the Ohio department of education.

(6)
Filing a complaint

(a)
An organization or individual may file a
signed written complaint under the procedures described in paragraphs (K)(4) to
(K)(5) of this rule.

(b)
The
complaint must include:

(i)
A statement that a
school district of residence has violated a requirement of Part B of the IDEA
or of this rule;

(ii)
The facts on
which the statement is based;

(iii)
The signature and contact information for the complainant; and

(iv)
If alleging violations with respect to a
specific child:

(a)
The name and address of
the residence of the child;

(b)
The
name of the school the child is attending;

(c)
In the case of a homeless child or youth
(within the meaning of Section 725(2) of the McKinney-Vento Homeless Assistance
Act (
42 U.S.C. 11434a(2), as amended
and specified in Title X, Part C, of the No Child Left Behind Act of 2001,
January 2002,
42 U.S.C. 11431 ), available contact information for
the child, and the name of the school the child is attending;

(d)
A description of the nature of the
problem of the child, including facts relating to the problem; and

(e)
A proposed resolution of the problem to
the extent known and available to the party at the time the complaint is
filed.

(c)
The complaint must allege a violation that occurred not more than one year
prior to the date that the complaint is received in accordance with paragraph
(K)(4) of this rule.

(d)
The party
filing the complaint must forward a copy of the complaint to the school
district of residence at the same time the party files the complaint with the
Ohio department of education.

(7)
Filing a due process complaint

(a)
General

(i)
A parent or a school district, county
board of DD, or other educational agency
may file a due process complaint on any of the matters described in paragraphs
(H)(1)(a) and (H)(1)(b) of this rule relating to the identification, evaluation
or educational placement of a child with a disability, or the provision of FAPE
to the child.

(ii)
The due process
complaint must allege a violation that occurred not more than two years before
the date the parent or public agency knew or should have known about the
alleged action that forms the basis of the due process complaint, except that
the exceptions to the timeline described in paragraph (K)(10)(f) of this rule
apply to the timeline in this paragraph.

(b)
Information for parents

The school district of residence must inform the parent of any
free or low-cost legal and other relevant services available in the area
if:

(i)
The parent requests the
information; or

(ii)
The parent or
the school district files a due process complaint under this rule.

(c)
Hearing requested by someone
other than parent

If a hearing has been requested by someone other than the
child's parent, the parent shall be informed in writing of the request. The
parent shall be invited to participate in the proceedings and shall be provided
copies of all communications between the parties.

(8)
Due process complaint

(a)
General

(i)
The Ohio department of education shall
establish state due process procedures. Additionally, the school district or
public agency must have procedures that require either party, or the attorney
representing a party, to provide to the other party a due process complaint
(which must remain confidential).

(ii)
The party filing a due process complaint
must forward a copy of the due process complaint to the Ohio department of
education.

(b)
Content
of complaint

The due process complaint required in paragraph (K)(8)(a)(i)
of this rule must include:

(i)
The
name of the child;

(ii)
The address
of the residence of the child;

(iii)
The name of the school the child is
attending;

(iv)
In the case of a
homeless child or youth (within the meaning of Section 725(2) of the
McKinney-Vento Homeless Assistance Act (
42 U.S.C. 11434a(2), as amended
and specified in Title X, Part C, of the No Child Left Behind Act of 2001,
January 2002,
42 U.S.C. 11431 ), available contact information for
the child, and the name of the school the child is attending;

(v)
A description of the nature of the
problem of the child relating to the proposed or refused initiation or change,
including facts relating to the problem; and

(vi)
A proposed resolution of the problem to
the extent known and available to the party at the time.

(c)
Notice required before a hearing on a due
process complaint

A party may not have a hearing on a due process complaint
until the party, or the attorney representing the party, files a due process
complaint that meets the requirements of paragraph (K)(8)(b) of this
rule.

(d)
Appointment of
hearing officer

Upon receipt of a request for a due process hearing, the Ohio
department of education, office for exceptional children, will appoint an
impartial hearing officer from a list of attorneys maintained by the office for
exceptional children.

(e)
Sufficiency of complaint

(i)
The due process
complaint required by this rule must be deemed sufficient unless the party
receiving the due process complaint notifies the hearing officer and the other
party in writing, within fifteen days of receipt of the due process complaint,
that the receiving party believes the due process complaint does not meet the
requirements in paragraph (K)(8)(b) of this rule.

(ii)
The appointed hearing officer shall
handle all phases of the due process request, including, but not limited to,
whether a determination of insufficiency should result in the amendment or
dismissal of a due process complaint.

(iii)
Within five days of receipt of the
notification under paragraph (K)(8)(e)(i) of this rule, the hearing officer
must make a determination on the face of the due process complaint of whether
the due process complaint meets the requirements of paragraph (K)(8)(b) of this
rule, and must immediately notify the parties in writing of that determination.

The hearing officer shall review the sufficiency issues in
accordance with the following:

(a)
The
hearing officer shall make a determination on the face of the due process
complaint no later than five days after receipt of the notification under
paragraph (K)(8)(e)(i) of this rule;

(b)
The hearing officer shall notify all
parties of that written determination on the same date the determination is
made;

(c)
If the due process
complaint is determined to be insufficient, the determination shall include:

(i)
The reasons for the determination of
insufficiency;

(ii)
A statement in
clear language that the case has not been dismissed;

(iii)
The case cannot go to hearing until a
due process notice is filed which meets the requirements of paragraph (K)(8)(b)
of this rule; and

(iv)
Notice of
resources to assist parents without counsel in completing due process
complaints and in correcting deficiencies included in the finding of
insufficiency by the hearing officer, including, but not limited to, the
identity and contact information of the employee at the Ohio department of
education who is qualified to answer parents' questions about the required
information specified in paragraph (K)(8)(b) of this rule that must be included
in a due process complaint notice.

(iv)
A party may amend its due process
complaint only if:

(a)
The other party
consents in writing to the amendment and is given the opportunity to resolve
the due process complaint through a meeting held pursuant to paragraph (K)(9)
of this rule; or

(b)
The hearing
officer grants permission, except that the hearing officer may only grant
permission to amend at any time not later than five days before the due process
hearing begins.

(v)
If a
party files an amended due process complaint, the timelines for the resolution
meeting in paragraph (K)(9)(a) of this rule and the time period to resolve in
paragraph (K)(9)(b) of this rule begin again with the filing of the amended due
process complaint.

(f)
School district of residence response to
a due process complaint

(i)
If the school
district of residence has not sent a prior written notice under paragraph (H)
of this rule to the parent regarding the subject matter contained in the
parent's due process complaint, the school district of residence must, within
ten days of receiving the due process complaint, send to the parent a response
that includes:

(a)
An explanation of why the
school district of residence proposed or refused to take the action raised in
the due process complaint;

(b)
A
description of other options that the IEP team considered and the reasons why
those options were rejected;

(c)
A
description of each evaluation procedure, assessment, record, or report the
school district of residence used as the basis for the proposed or refused
action; and

(d)
A description of
the other factors that are relevant to the school district of residence's
proposed or refused action.

(ii)
A response by a school district of
residence under paragraph (K)(8)(f)(i) of this rule shall not be construed to
preclude the school district from asserting that the parent's due process
complaint was insufficient, where appropriate.

(g)
Other party response to a due process
complaint

Except as provided in paragraph (K)(8)(f) of this rule, the
party receiving a due process complaint must, within ten days of receiving the
due process complaint, send to the other party a response that specifically
addresses the issues raised in the due process complaint.

(9)
Resolution process

(a)
Resolution meeting

(i)
Within fifteen days of receiving notice
of the parent's due process complaint, and prior to the initiation of a due
process hearing under paragraph (K)(10) of this rule, the school district of
residence must convene a meeting with the parent and the relevant member or
members of the IEP team who have specific knowledge of the facts identified in
the due process complaint that:

(a)
Includes a
representative of the school district of residence who has decision-making
authority on behalf of that district; and

(b)
May not include an attorney of the school
district of residence unless the parent is accompanied by an
attorney.

(ii)
The
purpose of the meeting is for the parent of the child to discuss the due
process complaint, and the facts that form the basis of the due process
complaint, so that the school district of residence has the opportunity to
resolve the dispute that is the basis for the due process complaint.

(iii)
The meeting described in paragraphs (K)(9)(a)(i)
and (K)(9)(a)(ii) of this rule need not be held if:

(a)
The parent and the school district of
residence agree in writing to waive the meeting; or

(b)
The parent and the school district of
residence agree to use the mediation process described in paragraph (K)(3) of
this rule.

(iv)
The parent and
the school district of residence determine the relevant members of the IEP team
to attend the meeting.

(b)
Resolution period

(i)
If the school district has not resolved
the due process complaint to the satisfaction of the parent within thirty days
of the receipt of the due process complaint, the due process hearing may
occur.

(ii)
Except as provided in
paragraph (K)(9)(c) of this rule, the timeline for issuing a final decision
under paragraph (K)(15) of this rule begins at the expiration of this
thirty-day period.

(iii)
Except
where the parties have jointly agreed to waive the resolution process or to use
mediation, notwithstanding paragraphs (K)(9)(b)(i) and (K)(9)(b)(ii) of this
rule, the failure of the parent filing a due process complaint to participate
in the resolution meeting will delay the timelines for the resolution process
and due process hearing until the meeting is held.

(iv)
If the school district of residence is
unable to obtain the participation of the parent in the resolution meeting
after reasonable efforts have been made (and documented using the procedures in
rule
3301-51-07
of the Administrative Code), the school district of residence may, at the
conclusion of the thirty-day period, request that a hearing officer dismiss the
parent's due process complaint.

(v)
If the school district of residence fails to hold the resolution meeting
specified in paragraph (K)(9)(a) of this rule within fifteen days of receiving
notice of a parent's due process complaint or fails to participate in the
resolution meeting, the parent may seek the intervention of a hearing officer
to begin the due process hearing timeline.

(c)
Adjustments to thirty-day resolution
period

The forty-five-day timeline for the due process hearing in
paragraph (K)(15)(a) of this rule starts the day after one of the following
events:

(i)
Both parties agree in
writing to waive the resolution meeting;

(ii)
After either the mediation or resolution
meeting starts but before the end of the thirty-day period, the parties agree
in writing that no agreement is possible;

(iii)
If both parties agree in writing to
continue the mediation at the end of the thirty-day resolution period, but
later, the parent or school district of residence withdraws from the mediation
process.

(d)
Written
settlement agreement

If a resolution to the dispute is reached at the meeting
described in paragraphs (K)(9)(a)(i) and (K)(9)(a)(ii) of this rule, the
parties must execute a legally binding agreement that:

(i)
States that all discussions that occurred
during the resolution process shall be confidential and shall not be used as
evidence in any subsequent due process hearing or civil procedure;

(ii)
Is signed by both the parent and a
representative of the school district of residence who has the authority to
bind the district; and

(iii)
Is
enforceable in any state court of competent jurisdiction or in a district court
of the United States.

(e)
Agreement review period

If the parties execute an agreement pursuant to paragraph
(K)(9)(d) of this rule, a party may void the agreement within three business
days of the agreement's execution.

(10)
Impartial due process hearing

(a)
General

Whenever a due process complaint is received under paragraph
(K)(7) or (K)(22) of this rule, the parents or the school district of residence
involved in the dispute must have an opportunity for an impartial due process
hearing, consistent with the procedures in paragraphs (K)(7) to (K)(9) of this
rule.

(b)
School district
responsible for conducting the due process hearing

The hearing described in paragraph (K)(10)(a) of this rule
must be conducted by the school district of residence as provided by section
3323.05
of the Revised Code, the provisions of this rule, and procedures of the Ohio
department of education.

(c)
Impartial hearing officer

(i)
At a minimum, a hearing officer:

(a)
Must not be:

(i)
An employee of the Ohio department of
education or the school district that is involved in the education or care of
the child; or

(ii)
A person having
a personal or professional interest that conflicts with the person's
objectivity in the hearing;

(b)
Must possess knowledge of, and the
ability to understand, the provisions of the IDEA, federal and state
regulations pertaining to the IDEA, and legal interpretations of the IDEA by
federal and state courts;

(c)
Must
possess the knowledge and ability to conduct hearings in accordance with
appropriate, standard legal practice and be trained in
accordance with requirements set forth by the office of exceptional
children;

(d)
Must possess
the knowledge and ability to render and write decisions in accordance with
appropriate, standard legal practice; and

(e)
Must be an attorney licensed to practice
law in Ohio who has successfully completed all training required by the Ohio
department of education.

(ii)
A person who otherwise qualifies to
conduct a hearing under paragraph (K)(10)(c)(i) of this rule is not an employee
of the school district solely because the person is paid by the school district
of residence to serve as a hearing officer.

(iii)
Each public agency must keep a list of
the persons who serve as hearing officers. The list must include a statement of
the qualifications of each of those persons.

(iv)
The Ohio department of education, office
for exceptional children may require any and all current hearing or state level
review officers to reapply for eligibility to remain on the list. Training
sessions are a mandatory requirement to remain eligible for appointments. In
addition, being on the list of possible hearing or state level review officers
should not be considered a guarantee or expectation of appointment.

(d)
Subject matter of due process
hearings

The party requesting the due process hearing may not raise
issues at the due process hearing that were not raised in the due process
complaint filed under paragraph (K)(8)(b) of this rule, unless the other party
agrees otherwise.

(e)
Timeline for requesting a hearing

A parent or public agency must request an impartial hearing on
their due process complaint within two years of the date the parent or agency
knew or should have known about the alleged action that forms the basis of the
due process complaint.

(f)
Exceptions to the timeline

The timeline described in paragraph (K)(10)(e) of this rule
does not apply to a parent if the parent was prevented from filing a due
process complaint due to:

(i)
Specific
misrepresentations by the school district that it had resolved the problem
forming the basis of the due process complaint; or

(ii)
The school district's withholding of
information from the parent that was required under this rule to be provided to
the parent.

(11)
Hearing rights

(a)
General

Any party to a hearing conducted pursuant to paragraphs (K)(2)
and (K)(7) to (K)(13) of this rule or paragraphs (K)(20) to (K)(24) of this
rule, or an appeal conducted pursuant to paragraph (K)(14) of this rule, has
the right to:

(i)
Be accompanied and
advised by counsel and by individuals with special knowledge or training with
respect to the problems of children with disabilities;

(ii)
Present evidence and confront,
cross-examine, and compel the attendance of witnesses;

(iii)
Prohibit the introduction of any
evidence at the hearing that has not been disclosed to that party at least five
business days before the hearing;

(iv)
Obtain a written, or, at the option of
the parents, electronic, verbatim record of the hearing; and

(v)
Obtain written, or, at the option of the
parents, electronic findings of fact and decisions.

(b)
Additional disclosure of information

(i)
At least five business days prior to a
hearing conducted pursuant to paragraph (K)(10)(a) of this rule, each party
must disclose to all other parties all evaluations completed by that date and
recommendations based on the offering party's evaluations that the party
intends to use at the hearing.

(ii)
A hearing officer may bar any party that fails to comply with paragraph
(K)(11)(b)(i) of this rule from introducing the relevant evaluation or
recommendation at the hearing without the consent of the other party.

(c)
Parental rights at hearings

Parents involved in hearings must be given the right
to:

(i)
Have the child who is the
subject of the hearing present;

(ii)
Open the hearing to the public;
and

(iii)
Have the record of the
hearing and the findings of fact and decisions described in paragraphs
(11)(a)(iv) and (11)(a)(v) of this rule provided at no cost to
parents.

(12)
Responsibility of hearing officer

The impartial hearing officer has the responsibility of
conducting the hearing in accordance with the
requirements set forth by the office of exceptional children, including, but
not limited to:

(a)
Notifying
all parties of the date, time and location of the hearing;

(b)
Arranging a disclosure conference at
least five business days prior to the hearing to assure that information to be
presented at the hearing is disclosed;

(c)
Issuing a subpoena or a subpoena duces
tecum when relevant, necessary, and material, with fees and mileage paid by the
party requesting the subpoena;

(i)
Either
party may request subpoenas to compel the attendance of witnesses at the
hearing. Either party may request subpoenas duces tecum to compel the witnesses
to bring specified documents to the hearing. Requests for subpoenas duces tecum
are submitted to the hearing officer. The hearing officer signs the
subpoenas.

(ii)
A subpoena may be
served by an attorney at law, or by any person who is not a party and over the
age of eighteen. Service of a subpoena upon a person named therein shall be
made by delivering a copy of the subpoena to the person, by reading it to him
or her in person, or by leaving it at the person's usual place of residence.
Service of subpoenas is solely the responsibility of the party requesting the
subpoena and shall not be assumed by the impartial hearing officer.

(d)
Ruling on procedural issues
presented at the hearing; and

(e)
Arriving at a written decision based solely on evidence and testimony presented
at the hearing and mailing such decision, by certified mail, to the parties
involved and the Ohio department of education, office for exceptional
children.

(13)
Hearing
decisions

(a)
Decision of hearing officer on
the provision of FAPE

(i)
Subject to paragraph
(K)(13)(a)(ii) of this rule, a hearing officer's determination of whether a
child received FAPE must be based on substantive grounds.

(ii)
In matters alleging a procedural
violation, a hearing officer may find that a child did not receive FAPE only if
the procedural inadequacies:

(a)
Impeded the
child's right to FAPE;

(b)
Significantly impeded the parent's opportunity to participate in the
decision-making process regarding the provision of FAPE to the parent's child;
or

(c)
Caused a deprivation of
educational benefit.

(iii)
Nothing in paragraph (K)(13)(a) of this
rule shall be construed to preclude a hearing officer from ordering a school
district to comply with procedural requirements under this rule.

(b)
Construction clause

Nothing in paragraphs (K)(2) and (K)(7) to (K)(13) of this
rule shall be construed to affect the right of a parent to file an appeal of
the due process hearing decision with the Ohio department of education.

(c)
Separate request for a due
process hearing

Nothing in this rule shall be construed to preclude a parent
from filing a separate due process complaint on an issue separate from a due
process complaint already filed.

(d)
Findings and decision to advisory panel
and general public

The Ohio department of education, after deleting any
personally identifiable information, must:

(i)
Transmit the findings and decisions
referred to in paragraph (K)(11)(a)(v) of this rule to the state advisory panel
which is hereby established and shall be maintained in accordance with section
3323. 06 of the Revised Code; and

(ii)
Make those findings and decisions
available to the public.

(14)
Finality of decision; appeal; impartial
review

(a)
Finality of hearing decision A
decision made in a hearing conducted pursuant to this rule is final, except
that any party involved in the hearing may appeal the decision under the
provisions of paragraphs (K)(14)(b) and (K)(17) of this rule.

(b)
Appeal of decisions; impartial review

(i)
Any party aggrieved by the findings and
decision in the hearing may appeal the findings and decision in writing to the
Ohio department of education within forty-five days of receipt of the hearing
decision.

(a)
The notice shall set forth the
order appealed and the grounds of the party's appeal; and

(b)
A party filing an appeal shall notify the
other party of the filing of the appeal.

(ii)
If there is an appeal, the Ohio
department of education must conduct an impartial review of the findings and
decision appealed. Upon receipt of an appeal, the Ohio department of education
shall appoint a state level review officer who will conduct the
review.

(iii)
The official
conducting the review must:

(a)
Examine the
entire hearing record;

(b)
Ensure
that the procedures at the hearing were consistent with the requirements of due
process;

(c)
Seek additional
evidence, if necessary. If a hearing is held to receive additional evidence,
the rights in paragraph (K)(11) of this rule apply;

(d)
Afford the parties an opportunity for
oral or written argument, or both, at the discretion of the reviewing
official;

(e)
Make an independent
decision on completion of the review; and

(f)
Give a copy of the written, or, at the
option of the parents, electronic findings of fact and decisions to the
parties.

(c)
Findings and decision to advisory panel and general public The Ohio department
of education, after deleting any personally identifiable information, must:

(i)
Transmit the findings and decisions
referred to in paragraph (K)(14)(b)(iii)(f) of this rule to the state advisory
panel established under this rule and maintained in accordance with section
3323.06
of the Revised Code; and

(ii)
Make
those findings and decisions available to the public.

(d)
Finality of review decision

The decision made by the reviewing official is final unless a
party brings a civil action under paragraph (K)(17) of this rule.

(15)
Timelines and
convenience of hearings and reviews

(a)
The
Ohio department of education must ensure that not later than forty-five days
after the expiration of the thirty-day period under paragraph (K)(9)(b) of this
rule, or the adjusted time periods described in paragraph (K)(9)(c) of this
rule:

(i)
A final decision is reached in the
hearing; and

(ii)
A copy of the
decision is mailed to each of the parties.

(b)
The Ohio department of education must
ensure that not later than thirty days after the receipt of a request for a
review:

(i)
A final decision is reached in the
review; and

(ii)
A copy of the
decision is mailed to each of the parties.

(c)
A hearing or reviewing officer may grant
specific extensions of time beyond the periods set out in paragraphs (K)(15)(a)
and (K)(15)(b) of this rule at the request of either party.

(d)
Each hearing and each review involving
oral arguments must be conducted at a time and place that is reasonably
convenient to the parents and child involved.

(16)
Cost of hearings

(a)
The school district of the child's
residence shall provide one copy of the written, or at the option of the
parents, an electronic verbatim record of the hearing and findings of fact and
decisions to the parent at no cost.

(b)
All other cost incurred in impartial due
process hearings requested by the parent shall be assumed by the school
district of the child's residence, except as follows:

(i)
Expert testimony, outside medical
evaluation, witness fees, subpoena fees, and cost of counsel will be paid by
the party requesting the services; and

(ii)
If requested by the parents or their
attorney, additional copies of the record of the hearing and findings of fact
and decisions.

(c)
When
a school district, county board of DD, or other
educational agency providing special education and related services to a child
requests the impartial due process hearing, the district, county board of
DD, or
other educational agency will share equally the costs of the hearing with the
school district of residence, except those costs included in paragraph
(K)(16)(b) of this rule.

(d)
School
districts shall compensate hearing officers upon invoice at an hourly rate not
higher than that established for special counsel for the state of Ohio. School
districts shall compensate hearing officers for no more than fifty hours of
actual hearing time, excluding work done outside of the hearing, for any due
process request unless the hearing officer submits to the Ohio department of
education, office for exceptional children a written rationale for a hearing to
exceed fifty hours of hearing time.

(e)
The Ohio department of education shall
compensate state level review officers upon invoice at an hourly rate not
higher than that established for special counsel for the state of
Ohio.

(17)
Civil action

(a)
General

Any party aggrieved by the findings and decision under
paragraph (K)(14)(b) of this rule, has the right to bring a civil action with
respect to the due process complaint notice requesting a due process hearing
under paragraph (K)(7) or paragraphs (K)(20) to (K)(22) of this rule. The
action may be brought in any state court of competent jurisdiction or in a
district court of the United States without regard to the amount in
controversy.

(b)
Time
limitation

The party bringing the action shall have ninety days from the
date of the decision of the state review official, to bring a civil action in
the district court of the United States, or shall within forty-five days of
notification of the decision of the state review official, appeal the final
order to the common pleas court of the county of the child's district of
residence as provided by section
3323.05
of the Revised Code.

(c)
Additional requirements

In any action brought under paragraph (K)(17)(a) of this rule,
the court:

(i)
Receives the records of
the administrative proceedings;

(ii)
Hears additional evidence at the request of a party; and

(iii)
Basing its decision on the
preponderance of the evidence, grants the relief that the court determines to
be appropriate.

(d)
Jurisdiction of district courts

The district courts of the United States have jurisdiction of
actions brought under Section 615 of the IDEA without regard to the amount in
controversy.

(e)
Rule of
construction

Nothing in this rule restricts or limits the rights,
procedures, and remedies available under the United States Constitution, the
Americans with Disabilities Act of 1990, January 1990, Title V of the
Rehabilitation Act of 1973 as amended by the Rehabilitation Act Amendments of
1998, August 1998, or other federal laws protecting the rights of children with
disabilities, except that before the filing of a civil action under these laws
seeking relief that is also available under Section 615 of the IDEA, the
procedures under paragraphs (K)(7) and (K)(14) of this rule must be exhausted
to the same extent as would be required had the action been brought under
Section 615 of the IDEA.

(18)
Attorneys' fees

(a)
In general

In any action or proceeding brought under Section 615 of the
IDEA, the court, in its discretion, may award reasonable attorneys' fees as
part of the costs to:

(i)
The
prevailing party who is the parent of a child with a disability;

(ii)
To a prevailing party who is the Ohio
department of education or a school district against the attorney of a parent
who files a complaint or subsequent cause of action that is frivolous,
unreasonable, or without foundation, or against the attorney of a parent who
continued to litigate after the litigation clearly became frivolous,
unreasonable, or without foundation; or

(iii)
To a prevailing Ohio department of
education or school district against the attorney of a parent, or against the
parent, if the parent's request for a due process hearing or subsequent cause
of action was presented for any improper purpose, such as to harass, to cause
unnecessary delay, or to needlessly increase the cost of litigation.

(b)
Prohibition on use of funds

(i)
Funds under Part B of the IDEA may not be
used to pay attorneys' fees or costs of a party related to any action or
proceeding under Section 615 of the IDEA and Subpart E of Part B of the
IDEA.

(ii)
Paragraph (K)(18)(b)(i)
of this rule does not preclude the Ohio department of education or a school
district from using funds under Part B of the IDEA for conducting an action or
proceeding under Section 615 of the IDEA.

(c)
Award of fees

A court awards reasonable attorneys' fees under Section
615(i)(3) of the IDEA consistent with the following:

(i)
Fees awarded under Section 615(i)(3) of
the IDEA must be based on rates prevailing in the community in which the action
or proceeding arose for the kind and quality of services furnished. No bonus or
multiplier may be used in calculating the fees awarded under this
paragraph.

(ii)
Attorneys' fees may
not be awarded and related costs may not be reimbursed in any action or
proceeding under Section 615 of the IDEA for services performed subsequent to
the time of a written offer of settlement to a parent if:

(a)
The offer is made within the time
prescribed by rule 68 of the "Federal Rules of Civil Procedure" or, in the case
of an administrative proceeding, at any time more than ten days before the
proceeding begins;

(b)
The offer is
not accepted within ten days; and

(c)
The court or administrative hearing
officer finds that the relief finally obtained by the parents is not more
favorable to the parents than the offer of settlement.

(iii)
Attorneys' fees may not be awarded
relating to any meeting of the IEP team unless the meeting is convened as a
result of an administrative proceeding or judicial action, or at the discretion
of the state, for a mediation described in paragraph (K)(3) of this
rule.

(iv)
A meeting conducted
pursuant to paragraph (K)(9) of this rule shall not be considered:

(a)
A meeting convened as a result of an
administrative hearing or judicial action; or

(b)
An administrative hearing or judicial
action for purposes of this rule.

(v)
Notwithstanding paragraph (K)(18)(c)(ii)
of this rule, an award of attorneys' fees and related costs may be made to a
parent who is the prevailing party and who was substantially justified in
rejecting the settlement offer.

(vi)
Except as provided in paragraph
(K)(18)(c)(vii) of this rule, the court reduces, accordingly, the amount of the
attorneys' fees awarded under Section 615 of the IDEA, if the court finds that:

(a)
The parent, or the parent's attorney,
during the course of the action or proceeding, unreasonably protracted the
final resolution of the controversy;

(b)
The amount of the attorneys' fees
otherwise authorized to be awarded unreasonably exceeds the hourly rate
prevailing in the community for similar services by attorneys of reasonably
comparable skill, reputation, and experience;

(c)
The time spent and legal services
furnished were excessive considering the nature of the action or proceeding;
or

(d)
The attorney representing
the parent did not provide to the school district the appropriate information
in the due process request notice in accordance with paragraph (K)(8) of this
rule.

(vii)
The
provisions of paragraph (K)(18)(c)(vi) of this rule do not apply in any action
or proceeding if the court finds that the state or school district unreasonably
protracted the final resolution of the action or proceeding or there was a
violation of Section 615 of the IDEA.

(19)
Child's status during proceedings

(a)
Except as provided in paragraph (K)(23)
of this rule, during the pendency of any administrative or judicial proceeding
regarding a due process complaint notice requesting a due process hearing under
paragraph (K)(7) of this rule, unless the state or school district of residence
and the parents of the child agree otherwise, the child involved in the
complaint must remain in the child's current educational placement.

(b)
If the complaint involves an application
for initial admission to the school district, the child, with the consent of
the parents, must be placed in the school district until the completion of all
the proceedings.

(c)
If the
complaint involves an application for initial services under this rule from a
child who is transitioning from Part C of the IDEA to Part B of the IDEA and is
no longer eligible for Part C services because the child has turned three, the
public agency is not required to provide the Part C services that the child had
been receiving. If the child is found eligible for special education and
related services under Part B and the parent consents to the initial provision
of special education and related services under rule
3301-51-06 of the
Administrative Code, then the school district must provide those special
education and related services that are not in dispute between the parent and
the school district of residence.

(d)
If the state level review officer in an
administrative appeal conducted by the Ohio department of education agrees with
the child's parents that a change of placement is appropriate, that placement
must be treated as an agreement between the state and the parents for purposes
of paragraph (K)(19)(a) of this rule.

(20)
Authority of school personnel

(a)
Case-by-case determination

School personnel may consider any unique circumstances on a
case-by-case basis when determining whether a change in placement, consistent
with the other requirements of this rule, is appropriate for a child with a
disability who violates a code of student conduct.

(b)
General

(i)
School personnel under this rule may
remove a child with a disability who violates a code of student conduct from
the child's current placement to an appropriate interim alternative educational
setting, another setting, or suspension, for not more than ten consecutive
school days (to the extent those alternatives are applied to children without
disabilities), and for additional removals of not more than ten consecutive
school days in that same school year for separate incidents of misconduct (as
long as those removals do not constitute a change of placement under paragraph
(K)(26) of this rule).

(ii)
After a
child with a disability has been removed from the child's current placement for
ten school days in the same school year, during any subsequent days of removal
the school district must provide services to the extent required under
paragraph (K)(20)(d) of this rule.

(c)
Additional authority

For disciplinary changes in placement that would exceed ten
consecutive school days, if the behavior that gave rise to the violation of the
school code is determined not to be a manifestation of the child's disability
pursuant to paragraph (K)(20)(e) of this rule, school personnel may apply the
relevant disciplinary procedures to children with disabilities in the same
manner and for the same duration as the procedures would be applied to children
without disabilities, except as provided in paragraph (K)(20)(d) of this
rule.

(d)
Services

(i)
A child with a disability who is removed
from the child's current placement pursuant to paragraph (K)(20)(c) or
(K)(20)(g) of this rule must:

(a)
Continue to
receive educational services, as provided in rule
3301-51-02
of the Administrative Code, so as to enable the child to continue to
participate in the general education curriculum, although in another setting,
and to progress toward meeting the goals set out in the child's IEP;
and

(b)
Receive, as appropriate, a
functional behavioral assessment, and behavioral intervention services and
modifications, that are designed to address the behavior violation so that it
does not recur.

(ii)
The
services required by paragraphs (K)(20)(d)(i), (K)(20)(d)(iii), (K)(20)(d)(iv),
and (K)(20)(d)(v) of this rule may be provided in an interim alternative
educational setting.

(iii)
A school
district is only required to provide services during periods of removal to a
child with a disability who has been removed from the child's current placement
for ten school days or less in that school year, if it provides services to a
child without disabilities who is similarly removed.

(iv)
After a child with a disability has been
removed from the child's current placement for ten school days in the same
school year, if the current removal is for not more than ten consecutive school
days and is not a change of placement under this rule, school personnel, in
consultation with at least one of the child's teachers, determine the extent to
which services are needed, as provided in rule
3301-51-02
of the Administrative Code, so as to enable the child to continue to
participate in the general education curriculum, although in another setting,
and to progress toward meeting the goals set out in the child's IEP.

(v)
If the removal is a change of placement
under this rule, the child's IEP team determines appropriate services under
paragraph (K)(20)(d)(i) of this rule.

(e)
Manifestation determination

(i)
Within ten school days of any decision to
change the placement of a child with a disability because of a violation of a
code of student conduct, the school district, the parent, and relevant members
of the child's IEP team (as determined by the parent and the school district)
must review all relevant information in the child's file, including the child's
IEP, any teacher observations, and any relevant information provided by the
parents to determine:

(a)
If the conduct in
question was caused by, or had a direct and substantial relationship to, the
child's disability; or

(b)
If the
conduct in question was the direct result of the school district's failure to
implement the IEP.

(ii)
The conduct must be determined to be a manifestation of the child's disability
if the school district, the parent, and relevant members of the child's IEP
team determine that a condition in either paragraph (K)(20)(e)(i)(a) or
(K)(20)(e)(i)(b) of this rule was met.

(iii)
If the school district, the parent, and
relevant members of the child's IEP team determine the condition described in
paragraph (K)(20)(e)(i)(b) of this rule was met, the school district must take
immediate steps to remedy those deficiencies.

(f)
Determination that behavior was a
manifestation

If the school district, the parent, and relevant members of
the IEP team make the determination that the conduct was a manifestation of the
child's disability, the IEP team must:

(i)
Either:

(a)
Conduct a functional behavioral
assessment

unless the school district had conducted a functional behavioral assessment
before the behavior that resulted in the change of placement occurred, and
implement a behavioral intervention plan for the child; or

(b)
If a behavioral intervention plan already
has been developed , review the behavioral intervention plan and the
implementation of the plan, and modify it, as necessary, to address the
behavior ;
and

(ii)
Except as
provided in paragraph (K)(20)(g) of this rule, return the child to the
placement from which the child was removed, unless the parent and the school
district agree to a change of placement as part of the modification of the
behavioral intervention plan.

(g)
Special circumstances

School personnel may remove a child to an interim alternative
educational setting for not more than forty-five school days without regard to
whether the behavior is determined to be a manifestation of the child's
disability, if the child:

(i)
Carries
a weapon to or possesses a weapon at school, on school premises, or to or at a
school function under the jurisdiction of the Ohio department of education or a
school district;

(ii)
Knowingly
possesses or uses illegal drugs, or sells or solicits the sale of a controlled
substance, while at school, on school premises, or at a school function under
the jurisdiction of the Ohio department of education or a school district;
or

(iii)
Has inflicted serious
bodily injury upon another person while at school, on school premises, or at a
school function under the jurisdiction of the Ohio department of education or a
school district.

(h)
Notification

On the date on which the decision is made to make a removal
that constitutes a change of placement of a child with a disability because of
a violation of a code of student conduct, the school district must notify the
parents of that decision and provide the parents the procedural safeguards
notice described in paragraph (I) of this rule.

(i)
The following terms are defined as they
are used in this rule:

(a)
"Controlled
substance" means a drug or other substance identified under schedules I, II,
III, IV, or V in Section 202(c) of the Controlled Substances Act as amended and
specified in the Anabolic Steroids Control Act of 1990, November 1990,
21 U.S.C. 812(c).

(b)
"Illegal drug" means a controlled
substance; but does not include a controlled substance that is legally
possessed or used under the supervision of a licensed health-care professional
or that is legally possessed or used under any other authority under that act
or under any other provision of federal law.

(c)
"Serious bodily injury" has the meaning
given the term "serious bodily injury" under paragraph (3) of subsection (h) of
section 1365 of Title 18, United States Code (December
2, 2002).

(d)
"Weapon" has
the meaning given the term "dangerous weapon" under paragraph (2) of the first
subsection (g) of section 930 of Title 18, United States Code
(January 7, 2008).

(21)
Determination of setting

The child's IEP team determines the interim alternative
educational setting for services under paragraph (K)(20) of this rule.

(22)
Appeal

(a)
General The parent of a child with a
disability who disagrees with any decision regarding placement under paragraphs
(K)(20) and (K)(21) of this rule, or the manifestation determination under
paragraph (K)(20)(e) of this rule, or a school district that believes that
maintaining the current placement of the child is substantially likely to
result in injury to the child or others, may appeal the decision by requesting
a hearing. The hearing is requested by filing a complaint pursuant to
paragraphs (K)(7) and (K)(8) of this rule.

(b)
Authority of hearing officer

(i)
A hearing officer under paragraph (K)(10)
of this rule hears and makes a determination regarding an appeal.

(ii)
In making the determination under
paragraph (K)(22)(b)(i) of this rule, the hearing officer may:

(a)
Return the child with a disability to the
placement from which the child was removed if the hearing officer determines
that the removal was a violation of paragraph (K)(20) of this rule or that the
child's behavior was a manifestation of the child's disability; or

(b)
Order a change of placement of the child
with a disability to an appropriate interim alternative educational setting for
not more than forty-five school days if the hearing officer determines that
maintaining the current placement of the child is substantially likely to
result in injury to the child or to others.

(iii)
The procedures under paragraphs
(K)(22)(a), (K)(22)(b)(i), and (K)(22)(b)(ii) of this rule may be repeated, if
the school district believes that returning the child to the original placement
is substantially likely to result in injury to the child or to
others.

(c)
Expedited
due process hearing

(i)
Whenever a hearing is
requested under paragraph (K)(22)(a) of this rule, the parents or the school
district involved in the dispute must have an opportunity for an impartial due
process hearing consistent with the requirements of this rule, except as
provided in paragraphs (K)(7), (K)(8)(a) to (K)(8)(d), and (K)(9) to (K)(14) of
this rule.

(ii)
The Ohio department
of education or the school district of residence is responsible for arranging
the expedited due process hearing, which must occur within twenty school days
of the date the complaint requesting the hearing is filed. The hearing officer
must make a determination within ten school days after the hearing.

(iii)
Unless the parents and school district
of residence agree in writing to waive the resolution meeting described in
paragraph (K)(22)(c)(iii)(a) of this rule, or agree to use the mediation
process described in paragraph (K)(3) of this rule:

(a)
A resolution meeting must occur within
seven days of receiving notice of the due process complaint; and

(b)
The due process hearing may proceed
unless the matter has been resolved to the satisfaction of both parties within
fifteen days of the receipt of the due process complaint.

(iv)
The Ohio department of education may
establish different state-imposed procedural rules for expedited due process
hearings conducted under this rule than it has established for other due
process hearings, but, except for the timelines as modified in paragraph
(K)(22)(c)(iii) of this rule, the state must ensure that the requirements in
paragraphs (K)(9) to (K)(14) of this rule are met.

(v)
The decisions on expedited due process
hearings are appealable consistent with paragraph (K)(14) of this
rule.

(d)
Procedures for
expedited due process hearings

(i)
If a parent
requests an expedited due process hearing, school district of residence
personnel must contact the Ohio department of education, office for exceptional
children, before the end of the next business day following receipt of the
parent's request.

(ii)
If a school
district initiates an expedited due process hearing under this rule, school
district of residence personnel must contact the Ohio department of education,
office for exceptional children, on the day the expedited due process hearing
is requested. The school district shall provide the parents with notification
of the request for the hearing and procedural safeguards no later than the end
of the next business day.

(iii)
An
impartial hearing officer will be appointed by the Ohio department of
education, office for exceptional children, before the end of the next business
day from the day the school district of residence informs the office for
exceptional children.

(a)
The impartial
hearing officer shall meet the qualifications set forth in paragraph (K)(10)(c)
of this rule.

(b)
The impartial
hearing officer shall contact both parties of the hearing.

(iv)
The expedited due process hearing shall
be conducted in accordance with paragraphs (K)(12) and (K)(15) of this rule,
except that no extensions of time shall be granted, and the hearing will occur
within twenty school days of the date the complaint requesting the hearing was
filed. The hearing officer's decision will be completed within ten days of the
conclusion of the hearing.

(v)
The
decision of the hearing officer is final, unless a party to the expedited due
process hearing appeals the decision to the Ohio department of education,
within forty-five calendar days of the notification of the decision. In
consideration of the issues that are the basis of the expedited appeal, the
appeal should be filed as soon as possible.

(a)
The state level review officer will be
appointed in accordance with paragraph (K)(14)(b) of this rule;

(b)
The state level review will be conducted
in accordance with paragraphs (K)(14) and (K)(15) of this rule, except that no
extensions of time shall be granted, and the written decision shall be issued
no later than thirty days from the date the Ohio department of education
receives the request.

(c)
The final
order of the state level review officer may be appealed to the courts in
accordance with paragraph (K)(17) of this rule.

(23)
Placement during appeals

When an appeal under paragraph (K)(22) of this rule has been
made by either the parent or the school district of residence, the child must
remain in the interim alternative educational setting pending the decision of
the hearing officer or until the expiration of the time period specified in
paragraph (K)(20)(c) or (K)(20)(g) of this rule, whichever occurs first, unless
the parent and the Ohio department of education or school district agree
otherwise.

(24)
Protections
for children not determined eligible for special education and related services

(a)
General

A child who has not been determined to be eligible for special
education and related services under this chapter of the Administrative Code
and who has engaged in behavior that violated a code of student conduct, may
assert any of the protections provided for in this rule if the school district
had knowledge (as determined in accordance with paragraph (K)(24)(b) of this
rule) that the child was a child with a disability before the behavior that
precipitated the disciplinary action occurred.

(b)
Basis of knowledge

A school district must be deemed to have knowledge that a
child is a child with a disability if before the behavior that precipitated the
disciplinary action occurred:

(i)
The
parent of the child expressed concern in writing to supervisory or
administrative personnel of the appropriate educational agency, or a teacher of
the child, that the child is in need of special education and related
services;

(ii)
The parent of the
child requested an evaluation of the child pursuant to rule
3301-51-06 of the
Administrative Code; or

(iii)
The
teacher of the child, or other personnel of the school district, expressed
specific concerns about a pattern of behavior demonstrated by the child
directly to the director of special education of the school district or to
other supervisory personnel of the school district.

(c)
Exception

A school district would not be deemed to have knowledge under
paragraph (K)(24)(b) of this rule if:

(i)
The parent of the child:

(a)
Has not allowed an evaluation of the
child pursuant to rule
3301-51-06 of the
Administrative Code; or

(b)
Has
refused services under this chapter of the Administrative Code; or

(ii)
The child has been evaluated
in accordance with rule
3301-51-06 of the
Administrative Code and determined to not be a child with a disability under
this chapter.

(d)
Conditions that apply if no basis of knowledge

(i)
If a school district does not have
knowledge that a child is a child with a disability (in accordance with
paragraphs (K)(24)(b) and (K)(24)(c) of this rule) prior to taking disciplinary
measures against the child, the child may be subjected to the disciplinary
measures applied to children without disabilities who engage in comparable
behaviors consistent with paragraph (K)(24)(d)(ii) of this rule.

(ii)
If a request is made for an evaluation
of a child during the time period in which the child is subjected to
disciplinary measures under paragraph (K)(20) of this rule, the evaluation must
be conducted in an expedited manner.

(iii)
Until the evaluation is completed, the
child remains in the educational placement determined by school authorities,
which can include suspension or expulsion without educational
services.

(iv)
If the child is
determined to be a child with a disability, taking into consideration
information from the evaluation conducted by the school district of residence
and information provided by the parents, the school district of residence must
provide special education and related services in accordance with this chapter
of the Administrative Code, including the requirements of paragraphs (K)(20) to
(K)(26) of this rule and Section 612(a)(1)(A) of the IDEA.

(25)
Referral to and action by law
enforcement and judicial authorities

Rule of construction. Nothing in this rule prohibits an agency
from reporting a crime committed by a child with a disability to appropriate
authorities or prevents state law enforcement and judicial authorities from
exercising their responsibilities with regard to the application of federal and
state law to crimes committed by a child with a disability. Transmittal of
records shall be done in accordance with paragraph (R)(2) of rule
3301-51-04 of the
Administrative Code.

(26)
Change of placement because of disciplinary removals

(a)
For purposes of removals of a child with
a disability from the child's current educational placement under paragraphs
(K)(20) to (K)(25) of this rule, a change of placement occurs if:

(i)
The removal is for more than ten
consecutive school days; or

(ii)
The child has been subjected to a series of removals that constitute a pattern:

(a)
Because the series of removals total more
than ten school days in a school year;

(b)
Because the child's behavior is
substantially similar to the child's behavior in previous incidents that
resulted in the series of removals; and

(c)
Because of such additional factors as the
length of each removal, the total amount of time the child has been removed,
and the proximity of the removals to one another.

(b)
The school district determines
on a case-by-case basis whether a pattern of removals constitutes a change of
placement. This determination is subject to review through due process and
judicial proceedings.

(L)
Availability of
scholarship notification

(1)
Each time a district completes an evaluation for a
child with a disability or undertakes the development, review or revision of
the child's IEP, the district shall notify the child's parent, by letter or
electronic means, about both the "Autism Scholarship Program" (ASP),
established by section
3310.41
of the Revised Code, and the "Jon Peterson Special Needs Scholarship Program"
(JPSN), established by section
3310.52
of the Revised Code, in accordance with division (C) of section
3323.052
of the Revised Code.

(2)
The notice shall include the following:

(a)
Information that
the child may be eligible for a scholarship under either the ASP or the JPSN
that implements the child's IEP and that is operated by an alternative public
provider or by a registered private provider; and

(b)
The telephone
number of the office of the department responsible for administering the
scholarship programs and the specific location of scholarship information on
the department's website.

(3)
In the case of a
preschool-aged child, notice only of the "Autism Scholarship Program" (ASP) is
required when the district completes an evaluation for a child with a
disability or undertakes the development, review or revision of the child's
IEP.

(1)
Each school district shall adopt and
implement written policies and procedures, approved by the Ohio department of
education, office for exceptional children, to ensure that a referral process
is employed to determine whether or not a child is a child with a disability.
The school district of residence shall ensure that initial evaluations are
conducted and that reevaluations are completed.

(2)
Consistent with rule
3301-35-06
of the Administrative Code, each school district shall provide interventions to
resolve concerns for any preschool or school-age child who is performing below
grade-level standards.

(3)
A school
district may not use interventions to delay unnecessarily a child's being
evaluated to determine eligibility for special education services. If such
interventions have not been implemented prior to referral for evaluation,
appropriate interventions shall be implemented during the same sixty-day
time frame during which the school district conducts a full and individual
evaluation.

(4)
Each school
district shall use data from interventions to determine eligibility for special
education services, appropriate instructional practices, and access to the
general curriculum. In the case of a preschool-age child, data collected
through interventions is part of the differentiated referral process.

(B)
Initial evaluations

(1)
General

Each school district of residence must conduct a full and
individual initial evaluation, in accordance with this rule, before the initial
provision of special education and related services under Part B of the
Individuals with Disabilities Education Act, as amended by the Individuals with
Disabilities Education Improvement Act of 2004, December 2004 (IDEA) to a child
with a disability residing in the school district.

(2)
Request for initial evaluation

Consistent with the consent requirements in rule
3301-51-05
of the Administrative Code, either a parent of a child or a public agency may
initiate a request for an initial evaluation to determine if the child is a
child with a disability.

(3)
A school district of residence will,
within thirty days of receipt of a request for an evaluation from either a
parent of a child or a public agency, either obtain parental consent for an
initial evaluation or provide to the parents prior written notice stating that
the school district does not suspect a disability and will not be conducting an
evaluation.

(4)
Procedures for
initial evaluation

The initial evaluation:

(a)
Must be conducted within sixty days of
receiving parental consent for the evaluation; and

(b)
Must consist of procedures:

(i)
To determine if the child is a child with
a disability as defined in paragraph (B)(10) of rule
3301-51-01
of the Administrative Code; and

(ii)
To determine the educational needs of
the child.

(5)
Exception

The time frame described in paragraph (B)(4)(a) of this rule
does not apply to a school district if:

(a)
The parent of a child repeatedly fails or
refuses to produce the child for the evaluation; or

(b)
A child enrolls in a new school district
of residence after the relevant time frame in paragraph (B)(4)(a) of this rule
has begun, and prior to a determination by the child's previous school district
of residence as to whether the child is a child with a disability as defined in
paragraph (B)(10) of rule
3301-51-01
of the Administrative Code.

(6)
The exception in paragraph (B)(5)(b) of
this rule applies only if the subsequent school district of residence is making
sufficient progress to ensure a prompt completion of the evaluation, and the
parent and subsequent school district agree to a specific time when the
evaluation will be completed.

(C)
Screening for instructional purposes is
not evaluation

The screening of a child by a teacher or specialist to
determine appropriate instructional strategies for curriculum implementation
shall not be considered to be an evaluation for eligibility for special
education and related services.

(D)
Reevaluations

(1)
General A school district of residence
must ensure that a reevaluation of each child with a disability is conducted in
accordance with paragraphs (E) to ( I) of this rule:

(a)
If the school district determines that the educational or related services
needs, including improved academic achievement and functional performance, of
the child warrant a reevaluation; or

(b)
If the child's parent or teacher requests
a reevaluation; or

(c)
When a
child, who has met the eligibility criteria for a
developmental delay, transitions from preschool to school-age services;
or

(d)
In order to make a change in
disability category.

(2)
Limitation

A reevaluation conducted under paragraph (D)(1) of this rule:

(a)
May occur not more than once a
year, unless the parent and the school district agree otherwise; and

(b)
Must occur at least once every three
years, unless the parent and the school district agree that a reevaluation is
unnecessary.

(E)
Evaluation procedures

(1)
Notice

The school district of residence must provide notice to the
parents of a child with a disability, in accordance with rule
3301-51-05
of the Administrative Code, that describes any evaluation procedures the school
district proposes to conduct.

(2)
Conduct of evaluation

In conducting the evaluation, the school district must:

(a)
Use a variety of assessment tools and
strategies to gather relevant functional, developmental, and academic
information about the child, including information provided by the parent, that
may assist in determining:

(i)
Whether the
child is a child with a disability as defined in paragraph (B)(10) of rule
3301-51-01
of the Administrative Code; and

(ii)
The content of the child's
individualized education program (IEP), including information related to
enabling the child to be involved in and progress in the general education
curriculum (or for a preschool child to participate in appropriate
activities);

(b)
Not use
any single source of information, such as a single measure or
score, as the sole criterion for determining whether a child is a child
with a disability and for determining an appropriate educational program for
the child; and

(c)
Use technically
sound instruments that may assess the relative contribution of cognitive and
behavioral factors, in addition to physical or developmental factors.

(3)
Other evaluation procedures

Each school district must ensure that:

(a)
Assessments and other evaluation
materials used to assess a child under this rule:

(i)
Are selected and administered so as not
to be discriminatory on a racial or cultural basis;

(ii)
Are provided and administered in the
child's native language or other mode of communication and in the form most
likely to yield accurate information about what the child knows and can do
academically, developmentally, and functionally, unless it is clearly not
feasible to so provide or administer;

(iii)
Are used for the purposes for which the
assessments or measures are valid and reliable;

(iv)
Are administered by trained and
knowledgeable personnel; and

(v)
Are administered in accordance with any instructions provided by the producer
of the assessments.

(b)
Assessments and other evaluation materials include those tailored to assess
specific areas of educational need and not merely those that are designed to
provide a single general intelligence quotient.

(c)
Assessments are selected and administered
so as best to ensure that if an assessment is administered to a child with
impaired sensory, manual, or speaking skills, the assessment results accurately
reflect the child's aptitude or achievement level or whatever other factors the
test purports to measure, rather than reflecting the child's impaired sensory,
manual, or speaking skills (unless those skills are the factors that the test
purports to measure).

(d)
The child
is assessed in all areas related to the suspected disability, including, if
appropriate, health, vision, hearing, social and emotional status, general
intelligence, academic performance, communicative status, and motor
abilities;

(e)
Assessments of
children with disabilities who transfer from one school district to another
school district in the same school year are coordinated with those children's
prior and subsequent schools, as necessary and as expeditiously as possible,
consistent with paragraphs (B)(5)(b) and (B)(6) of this rule, to ensure prompt
completion of full evaluations.

(f)
In evaluating each child with a disability under paragraphs (E) to (G) of this
rule, the evaluation is sufficiently comprehensive to identify all of the
child's special education and related services needs, whether or not commonly
linked to the disability category in which the child has been
classified.

(g)
Assessment tools
and strategies that provide relevant information that directly assists persons
in determining the educational needs of the child are provided.

(h)
Medical consultation shall be encouraged
for a preschool or school-age child on a continuing basis, especially when
school authorities feel that there has been a change in the child's behavior or
educational functioning or when new symptoms are detected; and

(i)
For preschool-age children, as
appropriate, the evaluation shall include the following specialized
assessments:

(i)
Physical examination
completed by a licensed doctor of medicine or doctor of osteopathy in cases
where the disability is primarily the result of a congenital or acquired
physical disability;

(ii)
Vision
examination conducted by an eye care specialist in cases where the disability
is primarily the result of a visual impairment; and

(iii)
An audiological examination completed
by a certified or licensed audiologist in cases where the disability is
primarily the result of a hearing impairment.

(F)
Additional requirements for
evaluations and reevaluations

(1)
Review of
existing evaluation data As part of an initial evaluation,
and as part of any
reevaluation under this rule, the evaluation team shall develop an evaluation
plan that will provide for the following and be summarized in an evaluation
team report:

(a)
Review existing evaluation
data on the child, including:

(i)
Evaluations
and information provided by the parents of the child;

(ii)
Current classroom-based, local, or state
assessments, and classroom-based observations;

(iii)
Observations by teachers and related
services providers;

(iv)
Data about
the child's progress in the general curriculum or, for the preschool-age child,
data pertaining to the child's growth and development;

(v)
Data from previous interventions,
including:

(a)
Interventions required by rule
3301-35-06
of the Administrative Code; and

(b)
For the preschool child, data from early intervention, community or preschool
program providers; and

(vi)
Any relevant trend data beyond the past
twelve months, including the review of current and previous IEPs; and

(b)
On the basis of that review
and input from the child's parents, identify what additional data, if any, are
needed to determine:

(i)
Whether the child is
a child with a disability, as defined in rule
3301-51-01
of the Administrative Code, and the educational needs of the child;
or

(ii)
In case of a reevaluation
of a child, whether the child continues to have such a disability, and the
educational needs of the child;

(iii)
The present levels of academic
achievement and related developmental needs of the child;

(iv)
Whether the child needs special
education and related services; or

(v)
In the case of a reevaluation of a child,
whether the child continues to need special education and related services;
and

(vi)
Whether any additions or
modifications to the special education and related services are needed to
enable the child to meet the measurable annual goals set out in the IEP of the
child and to participate, as appropriate, in the general education
curriculum.

(2)
Conduct of review

The group described in paragraph (F)(1) of this rule may
conduct its review without a meeting.

(3)
Source of data

The school district must administer such assessments and other
evaluation measures as may be needed to produce the data identified under
paragraph (F)(1) of this rule.

(4)
Requirements if additional data are not
needed

(a)
If the evaluation team or the IEP
team, as appropriate, determine that no additional data are needed to determine
whether the child continues to be a child with a disability and to determine
the child's educational needs, the school district must notify the child's
parents of:

(i)
That determination and the
reasons for the determination; and

(ii)
The right of the parents to request an
assessment to determine whether the child continues to be a child with a
disability and to determine the child's educational needs.

(b)
The school district is not required to
conduct the assessment described in paragraph (F)(4)(a)(ii) of this rule unless
requested to do so by the child's parents.

(5)
Evaluations before change in eligibility

(a)
Except as provided in paragraph (F)(5)(b)
of this rule, a school district must evaluate a child with a disability in
accordance with paragraphs (E) to ( I) of this rule before determining that the child is
no longer a child with a disability.

(b)
The evaluation described in paragraph
(F)(5)(a) of this rule is not required before the termination of a child's
eligibility under this rule due to graduation from secondary school with a
regular diploma or due to exceeding the age eligibility for a free appropriate
public education (FAPE) under state law.

(c)
For a child whose eligibility terminates
under circumstances described in paragraph (F)(5)(b) of this rule, a school
district must provide the child with a summary of the child's academic
achievement and functional performance, which shall include recommendations on
how to assist the child in meeting the child's postsecondary goals.

(G)
Determination of
eligibility

(1)
General

Upon completion of the administration of assessments and other
evaluation measures:

(a)
A group of
qualified professionals and the parent of the child determines whether the
child is a child with a disability, as defined in rule
3301-51-01
of the Administrative Code, in accordance with paragraph (G)(2) of this rule
and the educational needs of the child; and

(b)
The school district provides a copy of
the evaluation report and the documentation of determination of eligibility at
no cost to the parent.

(i)
The written
evaluation team report shall include:

(a)
A
summary of information obtained during the evaluation process; and

(b)
The names, titles and signatures of each
team member, including the parent, and an indication of whether or not they are
in agreement with the eligibility determination. Any team member who is not in
agreement with the team's determination of disability shall submit a statement
of disagreement.

(ii)
The school district must provide a copy of the evaluation team report and the
documentation of determination of eligibility or continued eligibility to the
parents prior to the next IEP meeting and in no case later than fourteen days
from the date of eligibility determination.

(2)
Special rule for eligibility
determination

A child must not be determined to be a child with a disability
under this rule:

(a)
If the
determinant factor for that determination is:

(i)
Lack of appropriate instruction in
reading, including the essential components of reading instruction as defined
in Section 1208(3) of the Elementary and Secondary Education Act of 1965, as
amended and specified in the No Child Left Behind Act of 2001, January 2002,
20 U.S.C. 6301(ESEA);

(ii)
Lack of appropriate instruction in math;
or

(iii)
Limited English
proficiency; and

(b)
If
the child does not otherwise meet the eligibility criteria under paragraph
(B)(10) of rule
3301-51-01
of the Administrative Code.

(3)
Procedures for determining eligibility
and educational need

(a)
In interpreting
evaluation data for the purpose of determining if a child is a child with a
disability as defined in paragraph (B)(10) of rule
3301-51-01
of the Administrative Code, and the educational needs of the child, each school
district must:

(i)
Draw upon information from
a variety of sources, including aptitude and achievement tests, state and
districtwide assessments, parent input, and teacher recommendations, as well as
information about the child's physical condition, social or cultural
background, and adaptive behavior; and

(ii)
Ensure that information obtained from
all of these sources is documented and carefully considered.

(b)
If a determination is made
that a child has a disability and needs special education and related services,
an IEP must be developed for the child in accordance with rule
3301-51-07
of the Administrative Code.

(H)
Additional procedures for identifying
children with specific learning disabilities

(1)
Specific learning disabilities

(a)
General The Ohio department of education
adopts in this rule, criteria for determining whether a child has a specific
learning disability as defined in paragraph (B)(10)(d)(x) of rule
3301-51-01
of the Administrative Code. The criteria adopted by the state in this rule:

(i)
Do not require the use of a severe
discrepancy between intellectual ability and achievement for determining
whether a child has a specific learning disability, as defined in paragraph
(B)(10)(d)(x) of rule
3301-51-01
of the Administrative Code;

(ii)
Permit the use of a process based on the child's response to scientific,
research-based intervention; and

(iii)
Permit the use of other alternative
research-based procedures for determining whether a child has a specific
learning disability as defined in paragraph (B)(10)(d)(x) of rule
3301-51-01
of the Administrative Code.

(b)
Consistency with state criteria

A school district must use the state criteria adopted in this
rule pursuant to paragraph (H)(1) of this rule in determining whether a child
has a specific learning disability.

(2)
Additional group members

The determination of whether a child suspected of having a
specific learning disability is a child with a disability, as defined in rule
3301-51-01
of the Administrative Code, must be made by the child's parents and a team of
qualified professionals which must include:

(a)
The child's regular teacher; or

(b)
If the child does not have a regular
teacher, a regular classroom teacher qualified to teach a child of the child's
age; or

(c)
For a child of less
than school-age, an individual qualified by the Ohio department of education to
teach a child of the child's age; and

(d)
At least one person qualified to conduct
individual diagnostic examinations of children, such as a school psychologist,
speech-language pathologist, or remedial reading teacher.

(3)
Determining the existence of a specific
learning disability

(a)
The group described
in paragraph (G) of this rule may determine that a child has a specific
learning disability, as defined in paragraph (B)(10)(d)(x) of rule
3301-51-01
of the Administrative Code, if:

(i)
The child
does not achieve adequately for the child's age or to meet state-approved
grade-level standards in one or more of the following areas, when provided with
learning experiences and instruction appropriate for the child's age or
state-approved grade-level standards:

(a)
Oral
expression;

(b)
Listening
comprehension;

(c)
Written
expression;

(d)
Basic reading
skill;

(e)
Reading fluency
skills;

(f)
Reading
comprehension;

(g)
Mathematics
calculation; or

(h)
Mathematics
problem-solving.

(ii)
The child does not make sufficient progress to meet age or state-approved
grade-level standards in one or more of the areas identified in paragraph
(H)(3)(i) of this rule when using a process based on the child's response to
scientific, research-based intervention; or

(iii)
The child exhibits a pattern of
strengths and weaknesses in performance, achievement, or both, relative to age,
state-approved grade-level standards, or intellectual development, that is
determined by the group to be relevant to the identification of a specific
learning disability, using appropriate assessments, consistent with paragraphs
(E) and (F) of this rule; and

(iv)
The group determines that its findings under paragraphs (H)(3)(a)(i) to
(H)(3)(a)(iii) of this rule are not primarily the result of:

(a)
A visual, hearing, or motor
disability;

(b)
Mental
retardation;

(c)
Emotional
disturbance;

(d)
Cultural
factors;

(e)
Environmental or
economic disadvantage; or

(f)
Limited English proficiency.

(b)
To ensure that underachievement in a
child suspected of having a specific learning disability is not due to lack of
appropriate instruction in reading or math, the group must consider, as part of
the evaluation described in paragraphs (E) to (G) of this rule:

(i)
Data that demonstrate that prior to, or
as a part of, the referral process, the child was provided appropriate
instruction in regular education settings, delivered by qualified personnel;
and

(ii)
Data-based documentation
of repeated assessments of achievement at reasonable intervals, reflecting
formal assessment of student progress during instruction, which was provided to
the child's parents.

(c)
The school district must promptly request parental consent to evaluate the
child to determine if the child needs special education and related services,
and must adhere to the time frames described in paragraphs (B) and (D) of this
rule, unless the time frames are extended by mutual written agreement of the
child's parents and a group of qualified professionals, as described in
paragraph (G)(1)(a) of this rule:

(i)
If,
prior to a referral, a child has not made adequate progress after an
appropriate period of time when provided instruction, as described in
paragraphs (H)(3)(b)(i) and (H)(3)(b)(ii) of this rule; and

(ii)
Whenever a child is referred for an
evaluation.

(d)
An
evaluation may utilize a process based on the child's response to scientific,
research-based intervention to determine whether a child has a specific
learning disability. This process:

(i)
Begins
when sufficient data have been gathered and analyzed under conditions of
targeted and intensive individualized intervention conditions, when there is
evidence of an inadequate response to intervention on the part of the child,
and the group determines that the child's needs are unlikely to be met without
certain specialized instruction in addition to the regular classroom
instruction;

(ii)
Employs
interventions that are scientifically-based and provided at appropriate levels
of intensity, frequency, duration, and integrity, relative to the child's
identified needs;

(iii)
Is based on
results of scientifically-based, technically adequate assessment procedures
that assess ongoing progress while the child is receiving scientifically-based
instruction, and that have been reported to the child's parents;

(iv)
Includes the analysis of data described
in paragraphs (H)(3)(b)(i) and (H)(3)(b)(ii) of this rule to determine whether
a discrepancy is present between actual and expected performance, in both the
child's rate of progress in developing skills, and in the child's level of
performance on measures assessing one or more of the academic areas listed in
paragraph (H)(3)(a)(i) of this rule;

(v)
May not be used to delay unnecessarily a
child's being evaluated to determine eligibility for special education
services.

(e)
A school
district may use alternative, research-based procedures for determining whether
a child exhibits a pattern of strengths and weaknesses in performance,
achievement, or both, relative to age, state-approved grade-level standards, or
intellectual development, that is determined by the group to be relevant to the
identification of a specific learning disability, if prior approval of the
procedures has been granted by the Ohio department of education.

(f)
The school district must develop written
procedures for the implementation of any method used to determine the existence
of a specific learning disability that, at a minimum, incorporate guidelines
developed by the Ohio department of education as specified in this
rule.

(4)
Observation

(a)
The school district must ensure that the
child is observed in the child's learning environment, including the regular
classroom setting, to document the child's academic performance and behavior in
the areas of difficulty.

(b)
The
group described in paragraph (G) of this rule, in determining whether a child
has a specific learning disability, must decide to:

(i)
Use information from an observation in
routine classroom instruction and monitoring of the child's performance that
was done before the child was referred for an evaluation; or

(ii)
Have at least one member of the group
described in paragraph (G) of this rule conduct an observation of the child's
academic performance in the regular classroom after the child has been referred
for an evaluation and parental consent, consistent with rule
3301-51-05
of the Administrative Code, is obtained.

(c)
In the case of a child of less than
school-age or out of school, a group member must observe the child in an
environment appropriate for a child of that age.

(5)
Specific documentation for the
eligibility determination

(a)
For a child
suspected of having a specific learning disability, the documentation of the
determination of eligibility, as required in paragraph (G)(1)(b) of this rule,
must contain a statement of:

(i)
Whether the
child has a specific learning disability;

(ii)
The basis for making the determination,
including an assurance that the determination has been made in accordance with
paragraph (G)(3)(a) of this rule;

(iii)
The relevant behavior, if any, noted
during the observation of the child and the relationship of that behavior to
the child's academic functioning;

(iv)
The educationally relevant medical
findings, if any;

(v)
Whether:

(a)
The child does not achieve adequately for
the child's age or to meet state-approved grade-level standards consistent with
paragraph (H)(3)(a)(i) of this rule; and

(b)
The child does not make sufficient
progress to meet age or state-approved grade-level standards consistent with
paragraph (H)(3)(a)(ii) of this rule; or

(c)
The child exhibits a pattern of strengths
and weaknesses in performance, achievement, or both, relative to age,
state-approved grade-level standards or intellectual development consistent
with paragraph (H)(3)(a)(iii) of this rule;

(vi)
The determination of the group
concerning the effects of a visual, hearing, or motor disability; mental
retardation; emotional disturbance; cultural factors; environmental or economic
disadvantage; or limited English proficiency on the child's achievement level;
and

(vii)
If the child has
participated in a process that assesses the child's response to scientific,
research-based intervention:

(a)
The
instructional strategies used and the student-centered data collected;
and

(b)
The documentation that the
child's parents were notified about:

(i)
The
state's policies regarding the amount and nature of student performance data
that would be collected and the general education services that would be
provided;

(ii)
Strategies for
increasing the child's rate of learning; and

(iii)
The parents' right to request an
evaluation.

(b)
Each group member must certify in writing
whether the report reflects the member's conclusion. If it does not reflect the
member's conclusion, the group member must submit a separate statement
presenting the member's conclusions.

(I)
Additional procedures for identifying
children with multiple disabilities

A group of qualified professionals and the parents of the child
may determine the child has multiple disabilities if the child exhibits:

(1)
A combination of two or more areas of
disability as defined in rule
3301-51-01
of the Administrative Code, except for a combination that includes a specific
learning disability; and

(2)
A
severe or profound deficit in communication or adaptive behavior documented
through the use of individually administered standardized instruments which
have been validated for the specific purpose of measuring communication or
adaptive behavior.

(A)
Each school district shall adopt and
implement written policies and procedures approved by the Ohio department of
education, office for exceptional children, that ensure an individualized
education program (IEP) is developed and implemented for each child with a
disability.

(B)
The county boards
of developmental
disabilities (county boards of DD) and other educational agencies shall adopt and
implement written policies and procedures approved by the Ohio department of
education, office for exceptional children, that ensure services identified in
the child's IEP are provided as agreed upon with the child's school district of
residence.

(C)
The child's school
district of residence is responsible for ensuring that the requirements of this
rule are met regardless of which school district, county board of
DD, or
other educational agency implements the child's IEP. This includes the
responsibility for initiating and conducting meetings for the purpose of
developing, reviewing, and revising the IEP of a child with a
disability.

(D)
Children in other
districts or agencies

(1)
The school district
of residence is responsible for ensuring that an IEP is developed and
implemented for each child with a disability residing in the school district.
When providing special education services for a child with a disability in
another school district, county board of DD, or other
educational agency, the school district of residence must follow the same
procedural safeguards as it does for all children with disabilities and have on
file a copy of the current evaluation team report and the IEP.

(2)
Each school district will cooperate with
other districts, county boards of DD, and other educational agencies that serve children
with disabilities in institutions or other care facilities to ensure that these
children have access to an education in a regular public school setting, when
appropriate and as specified in the IEP.

(E)
IEPs

(1)
The state must ensure that an IEP that
meets the requirements of Section 636(d) of the Individuals with Disabilities
Education Act, as amended by the Individuals with Disabilities Education
Improvement Act of 2004, December 2004 (IDEA), is developed, reviewed, and
revised for each child with a disability in accordance with paragraphs (H) to
(L) of this rule, except as provided in paragraph (C)(2)(c) of rule
3301-51-05
of the Administrative Code.

(2)
Paragraphs (F) to (G) of this rule apply only to children with disabilities who
are or have been placed in or referred to a nonpublic school or facility by a
public school district as a means of providing special education and related
services.

(F)
Responsibility of the Ohio department of education

The Ohio department of education must ensure that a child with
a disability who is placed in or referred to a nonpublic school or facility by
a public school district:

(1)
Is
provided special education and related services:

(a)
In conformance with an IEP that meets the
requirements of paragraphs (H) to (M) of this rule; and

(b)
At no cost to the parents;

(2)
Is provided an education that
meets the standards that apply to education provided by the Ohio department of
education and school districts including the requirements of this rule, except
for paragraph (B)( 29) of rule
3301-51-01
of the Administrative Code and paragraph (H) of rule
3301-51-09
of the Administrative Code; and

(3)
Has all of the rights of a child with a disability who is served by a public
school district.

(G)
Implementation by the Ohio department of education

In implementing paragraph (F) of this rule, the Ohio
department of education must:

(1)
Monitor compliance through procedures such as written reports, on-site visits,
and parent questionnaires;

(2)
Disseminate copies of applicable standards to each nonpublic school and
facility to which a school district has referred or placed a child with a
disability; and

(3)
Provide an
opportunity for those nonpublic schools and facilities to participate in the
development and revision of state standards that apply to them.

(H)
Definition of individualized
education program

(1)
General

As used in this rule, the term "individualized education
program" or "IEP" means a written statement for each child with a disability
that is developed, reviewed, and revised in a meeting in accordance with
paragraphs (H) to (L) of this rule and that must include:

(a)
A statement that discusses the child's
future

The IEP team shall ensure that the family and child's
preferences and interests are an essential part of the planning process. The
IEP team will document planning information on the IEP;

(b)
A statement of the child's present levels
of academic achievement and functional performance, including:

(i)
How the child's disability affects the
child's involvement and progress in the general education curriculum (i.e., the
same curriculum as for nondisabled children); or

(ii)
For preschool children, as appropriate,
how the disability affects the child's participation in appropriate
activities;

(c)
A
statement of measurable annual goals, including academic and functional goals
and benchmarks or short-term objectives designed to:

(i)
Meet the child's needs that result from
the child's disability to enable the child to be involved in and make progress
in the general education curriculum; and

(ii)
Meet each of the child's other
educational needs that result from the child's disability;

(d)
A description of:

(i)
How the child's progress toward meeting
the annual goals described in paragraph (H)(1)(c) of this rule will be
measured; and

(ii)
When periodic
reports on the progress the child is making toward meeting the annual goals
(such as through the use of quarterly or other periodic reports, concurrent
with the issuance of report cards) will be provided;

(e)
A statement of the special education and
related services and supplementary aids and services, based on peer-reviewed
research to the extent practicable, to be provided to the child, or on behalf
of the child, and a statement of the program modifications or supports for
school personnel that will be provided to enable the child:

(i)
To advance appropriately toward attaining
the annual goals;

(ii)
To be
involved in and make progress in the general education curriculum in accordance
with paragraph (H)(1)(b) of this rule, and to participate in extracurricular
and other nonacademic activities; and

(iii)
To be educated and participate with
other children with disabilities and nondisabled children in the activities
described in this rule;

(f)
An explanation of the extent, if any, to
which the child will not participate with nondisabled children in the regular
class and in the activities described in paragraph (H)(1)(e) of this
rule;

(g)
A statement of any
individual appropriate accommodations that are necessary to measure the
academic achievement and functional performance of the child on state and
districtwide assessments consistent with Section 612(a)(16) of the
IDEA;

(h)
If the IEP team
determines that the child must take an alternate assessment instead of a
particular regular state or districtwide assessment of student achievement, a
statement of why:

(i)
The child cannot
participate in the regular assessment; and

(ii)
The particular alternate assessment
selected is appropriate for the child; and

(i)
The projected date for the beginning of
the services and modifications described in paragraph (H)(1)(e) of this rule
and the anticipated frequency, location, and duration of those services and
modifications.

(2)
Transition services

Beginning not later than the first IEP
to be in effect when the child turns fourteen, or younger if determined
appropriate by the IEP team, and updated annually, thereafter, the IEP must
include:

(b)
Appropriate
measureable post-secondary goals based on age-appropriate transition
assessments related to integrated employment in a competitive environment;
and

(c)
The transition services (including courses of study)
needed to assist the child in reaching those goals.

(3)
Transfer of rights at age of majority

Beginning not later than one year before the child reaches
eighteen years of age, which is the age of majority under Ohio law, the IEP
must include a statement that the child has been informed of the child's rights
under Part B of the IDEA that will transfer to the child on reaching the age of
majority, as specified in paragraph (D) of rule
3301-51-05
of the Administrative Code.

(4)
Construction

Nothing in this rule shall be construed to require:

(a)
That additional information be included
in a child's IEP beyond what is explicitly required in Section 614 of the IDEA;
or

(b)
The IEP team to include
information under one component of a child's IEP that is already contained
under another component of the child's IEP.

(I)
IEP team

(1)
General

The school district must ensure that the IEP team for each
child with a disability includes:

(a)
The parents of the child;

(b)
Not
less than one regular education teacher of the child (if the child is, or may
be, participating in the regular education environment);

(c)
Not less than one special education
teacher of the child or, where appropriate, not less than one special
education provider of the child;

(d)
A representative of the school district
who:

(i)
Is qualified to provide, or supervise
the provision of, specially designed instruction to meet the unique needs of
children with disabilities;

(ii)
Is
knowledgeable about the general education curriculum; and

(iii)
Is knowledgeable about the availability
of resources of the school district.

(e)
An individual who can interpret the
instructional implications of evaluation results, who may be a member of the
team described in paragraphs (I)(1)(b) to (I)(1)(f) of this rule;

(f)
At the discretion of the parent or the
school district, other individuals who have knowledge or special expertise
regarding the child, including related services personnel as appropriate; and

(g)
Whenever appropriate, the
child with a disability.

(2)
Transition services participants

(a)
In accordance with paragraph (I)(1)(g) of
this rule, the school district must invite a child with a disability to attend
the child's IEP team meeting if a purpose of the meeting will be the
consideration of the postsecondary goals for the child and the transition
services needed to assist the child in reaching those goals under paragraph
(H)(2) of this rule.

(b)
If the
child does not attend the IEP team meeting, the school district must take other
steps to ensure that the child's preferences and interests are
considered.

(c)
To the extent
appropriate, with the consent of the parents or a child who has reached the age
of majority, in implementing the requirements of paragraph (I)(2)(a) of this
rule, the school district must invite a representative of any participating
agency that is likely to be responsible for providing or paying for transition
services.

(3)
Determination of knowledge and special expertise

The determination of the knowledge or special expertise of any
individual described in paragraph (I)(1)(f) of this rule must be made by the
party (parents or school district) who invited the individual to be a member of
the IEP team.

(4)
Designating a school district representative

A school district may designate a school district member of
the IEP team to also serve as the district representative, if the criteria in
paragraph (I)(1)(d) of this rule are satisfied.

(5)
IEP team attendance

(a)
A member of the IEP team described in
paragraphs (I)(1)(b) to (I)(1)(e) of this rule is not required to attend an IEP
team meeting, in whole or in part, if the parent of a child with a disability
and the school district agree, in writing, that the attendance of the member is
not necessary because the member's area of the curriculum or related services
is not being modified or discussed in the meeting.

(b)
A member of the IEP team described in
paragraph (I)(5)(a) of this rule may be excused from attending an IEP team
meeting, in whole or in part, when the meeting involves a modification to or
discussion of the member's area of the curriculum or related services, if:

(i)
The parent, in writing, and the school
district consent to the excusal; and

(ii)
The member submits, in writing to the
parent and the IEP team, input into the development of the IEP prior to the
meeting.

(6)
Initial IEP team meeting for child under Part C

In the case of a child who was previously served under Part C
of the IDEA, an invitation to the initial IEP team meeting must, at the request
of the parent, be sent to the Part C service coordinator or other
representatives of the Part C system to assist with the smooth transition of
services.

(J)
Parent participation

(1)
School district
responsibility

Each school district must take steps to ensure that one or
both of the parents of a child with a disability are present at each IEP team
meeting or are afforded the opportunity to participate, including:

(a)
Notifying parents of the meeting early
enough to ensure that they will have an opportunity to attend; and

(b)
Scheduling the meeting at a mutually
agreed on time and place.

(2)
Information provided to parents

(a)
The notice required under paragraph
(J)(1)(a) of this rule must:

(i)
Indicate the
purpose, time, and location of the meeting and who will be in attendance;
and

(ii)
Inform the parents of the
provisions in paragraphs (I)(1)(f) and (I)(3) of this rule (relating to the
participation of other individuals on the IEP team who have knowledge or
special expertise about the child), and paragraph (I)(6) of this rule (relating
to the participation of the Part C service coordinator or other representatives
of the Part C system at the initial IEP team meeting for a child previously
served under Part C of the IDEA).

(b)
For a child with a disability, beginning
not later than the first IEP to be in effect when the child turns fourteen, or
younger if determined appropriate by the IEP team, the notice also must:

(i)
Indicate that a purpose of the meeting
will be the development of a statement of the transition services needs of the
child; and

(ii)
Indicate that the
school district will invite the child.

(c)
For a child with a disability, beginning
not later than the first IEP to be in effect when the child turns
fourteen, or younger if determined appropriate by the
IEP team, the notice also must:

(i)
Indicate:

(a)
That a purpose of the meeting will be the
consideration of the postsecondary goals and transition services for the child,
in accordance with paragraph (H)(2)(b) of this rule; and

(b)
That the school district will invite the
child; and

(ii)
Identify
any other agency that will be invited to send a representative.

(3)
Other methods to
ensure parent participation

If neither parent can attend an IEP team meeting, the school
district must use other methods to ensure parent participation, including
individual or conference telephone calls, consistent with paragraph (O) of this
rule (related to alternative means of meeting participation).

(4)
Conducting an IEP team meeting without a
parent in attendance

A meeting may be conducted without a parent in attendance if
the school district is unable to convince the parents that they should attend.
In this case, the school district must keep a record of its attempts to arrange
a mutually agreed on time and place, such as:

(a)
Detailed records of telephone calls made
or attempted and the results of those calls;

(b)
Copies of correspondence sent to the
parents and any responses received; and

(c)
Detailed records of visits made to the
parent's home or place of employment and the results of those visits.

(5)
Use of interpreters or other
action, as appropriate

The school district must take whatever action is necessary to
ensure that the parent understands the proceedings of the IEP team meeting,
including arranging for an interpreter for parents with deafness or whose
native language is other than English.

(6)
Parent copy of child's IEP

Within thirty calendar days after the IEP meeting, the school
district must give the parent a copy of the child's IEP at no cost to the
parent.

(K)
When
IEPs must be in effect

(1)
General

By the child's third birthday and at the beginning of each
subsequent school year, each school district must have in effect, for each
child with a disability within its jurisdiction, an IEP, as defined in
paragraph (H) of this rule. The IEP shall be implemented as soon as possible
following the IEP meeting.

(2)
The initial IEP must be developed within
whichever of the following time periods is the shortest:

(a)
Within thirty calendar days of the
determination that the child needs special education and related
services;

(b)
Within ninety
calendar days of receiving parental consent for an evaluation; or

(c)
Within one hundred twenty calendar days
of the receipt of a request for an evaluation from a parent or school
district.

(3)
Initial
IEPs; provision of services Each school district must ensure that:

(a)
A meeting to develop an IEP for a child
is conducted within thirty days of a determination that the child needs special
education and related services; and

(b)
As soon as possible following development
of the IEP, special education and related services are made available to the
child in accordance with the child's IEP.

(c)
Once a child
begins receiving services for the first time under an IEP, the school district
in which the child is enrolled shall notify parents that the child is required
to undergo a comprehensive eye exam within three months in accordance with
section
3323.19
of the Revised Code.

(4)
Accessibility of child's IEP to teachers
and others Each school district must ensure that:

(a)
The child's IEP is accessible to each
regular education teacher, special education teacher, related services
provider, and any other service provider who is responsible for its
implementation; and

(b)
Each
teacher and provider described in paragraph (K)(4)(a) of this rule is informed
of:

(i)
The teacher's and provider's specific
responsibilities related to implementing the child's IEP; and

(ii)
The specific accommodations,
modifications, and supports that must be provided for the child in accordance
with the IEP.

(5)
IEPs for children who transfer school
districts in the same state

If a child with a disability (who had an IEP that was in
effect in a previous school district in the same state) transfers to a new
school district of residence in the same state, and enrolls in a new school
within the same school year, the new school district of residence (in
consultation with the parents) must provide a free and appropriate public
education (FAPE) to the child (including services comparable to those described
in the child's IEP from the previous school district of residence), until the
new school district of residence either:

(a)
Adopts the child's IEP from the previous
school district of residence; or

(b)
Develops, adopts, and implements a new
IEP that meets the applicable requirements in paragraphs (H) to (L) of this
rule.

(6)
IEPs for
children who transfer from another state

If a child with a disability (who had an IEP that was in effect
in a previous school district in another state) transfers to a new school
district of residence in Ohio, and enrolls in a new school within the same
school year, the new school district of residence (in consultation with the
parents) must provide the child with FAPE (including services comparable to
those described in the child's IEP from the previous school district of
residence), until the new school district of residence:

(a)
Conducts an evaluation pursuant to
paragraphs (E) to (G) of rule
3301-51-06 of the
Administrative Code (if determined to be necessary by the new school district
of residence); and

(b)
Develops,
adopts, and implements a new IEP, if appropriate, that meets the applicable
requirements in paragraphs (H) to (L) of this rule.

(7)
Transmittal of records

To facilitate the transition for a child described in
paragraphs (K)(5) and (K)(6) of this rule:

(a)
The new school district of residence in
which the child enrolls must take reasonable steps to promptly obtain the
child's records, including the IEP and supporting documents and any other
records relating to the provision of special education or related services to
the child, from the previous school district of residence in which the child
was enrolled, pursuant to
34 C.F.R. 99.31(a)(2) ( January 14,
2013); and

(b)
The previous
school district of residence in which the child was enrolled must take
reasonable steps to promptly respond to the request from the new school
district of residence.

(L)
Development, review, and revision of IEP

(1)
Development of IEP

(a)
General In developing each child's IEP,
the IEP team must consider:

(i)
The strengths
of the child;

(ii)
The concerns of
the parents for enhancing the education of their child;

(iii)
The results of the initial or most
recent evaluation of the child;

(iv)
The results of the child's performance
on any state or districtwide assessment programs, as appropriate; and

(v)
The academic, developmental, and
functional needs of the child.

(b)
Consideration of special factors

The IEP team must:

(i)
In the case of a child whose behavior impedes the child's learning or that of
others, consider the use of positive behavioral interventions and supports, and
other strategies, to address that behavior;

(ii)
In the case of a child with limited
English proficiency, consider the language needs of the child as those needs
relate to the child's IEP;

(iii)
In
the case of a child who is blind or visually impaired:

(a)
Provide for instruction in braille and
the use of braille unless the IEP team determines, after an evaluation of the
child's reading and writing skills, needs, and appropriate reading and writing
media (including an evaluation of the child's future needs for instruction in
braille or the use of braille), that instruction in braille or the use of
braille is not appropriate for the child; and

(b)
Ensure that the requirements for IEPs for
children with visual impairments are implemented as provided in section
3323.011
of the Revised Code;

(iv)
Consider the communication needs of the
child, and in the case of a child who is deaf or hard of hearing, consider the
child's language and communication needs, opportunities for direct
communications with peers and professional personnel in the child's language
and communication mode, academic level, and full range of needs, including
opportunities for direct instruction in the child's language and communication
mode; and

A regular education teacher of a child with a disability, as a
member of the IEP team, must, to the extent appropriate, participate in the
development of the IEP of the child, including the determination of:

(i)
Appropriate positive behavioral
interventions and supports and other strategies for the child; and

(ii)
Supplementary aids and services, program
modifications, and support for school personnel consistent with paragraph
(H)(1)(e) of this rule.

(d)
Agreement

(i)
In making changes to a child's IEP after
the annual IEP team meeting for a school year, the parent of a child with a
disability and the school district may agree not to convene an IEP team meeting
for the purposes of making those changes, and instead may develop a written
document to amend or modify the child's current IEP.

(ii)
If the IEP team amends or modifies the
child's current IEP, as described in paragraph (L)(1)(d)(i) of this rule, the
annual review date for the amended or modified IEP does not change. The annual
review date will change upon a complete review and revision of the child's IEP
as outlined in paragraph (L)(2) of this rule.

(iii)
If changes are made to the child's IEP
in accordance with paragraph (L)(1)(d)(i) of this rule, the school district
must ensure that the child's IEP team is informed of those changes.

(e)
Consolidation of IEP team
meetings

To the extent possible, the school district must encourage the
consolidation of reevaluation meetings for the child and other IEP team
meetings for the child.

(f)
Amendments

Changes to the IEP may be made either by the entire IEP team
at an IEP team meeting, or as provided in paragraph (L)(1)(d) of this rule, by
amending the IEP rather than by redrafting the entire IEP. When an IEP is
amended the school district shall send a copy of the amended IEP to the parent
within thirty days of the date the IEP was amended.

(2)
Review and revision of IEPs

(a)
General

Each school district must ensure that, subject to paragraphs
(L)(2)(b) and (L)(2)(c) of this rule, the IEP team:

(i)
Reviews the child's IEP periodically, but
not less than annually, to determine whether the annual goals for the child are
being achieved; and

(ii)
Revises
the IEP, as appropriate, to address:

(a)
Any
lack of expected progress toward the annual goals described in paragraph
(H)(1)(c) of this rule, and in the general education curriculum, if
appropriate;

(b)
The results of any
reevaluation conducted under rule
3301-51-06 of the
Administrative Code;

(c)
Information about the child provided to, or by, the parents, as described under
paragraph (F)(1)(b) of rule
3301-51-06 of the
Administrative Code;

(d)
The
child's anticipated needs; or

(e)
Other matters.

(b)
Consideration of special factors

In conducting a review of the child's IEP, the IEP team must
consider the special factors described in paragraph (L)(1)(b) of this
rule.

(c)
Requirement with
respect to regular education teacher

A regular education teacher of the child, as a member of the
IEP team, must, consistent with paragraph (L)(1)(c) of this rule, participate
in the review and revision of the IEP of the child.

(3)
Failure to meet transition
objectives

(a)
Participating agency failure

If a participating agency, other than the school district,
fails to provide the transition services described in the IEP in accordance
with paragraph (H)(2) of this rule, the school district must reconvene the IEP
team to identify alternative strategies to meet the transition objectives for
the child set out in the IEP.

(b)
Construction

Nothing in this rule relieves any participating agency,
including a state vocational rehabilitation agency, of the responsibility to
provide or pay for any transition service that the agency would otherwise
provide to children with disabilities who meet the eligibility criteria of that
agency.

(4)
Children with disabilities in adult prisons

(a)
Requirements that do not apply

The following requirements do not apply to children with
disabilities who are convicted as adults under state law and incarcerated in
adult prisons:

(i)
The requirements
contained in Section 612(a)(16) of the IDEA and paragraph (H)(1)(g) of this
rule (relating to participation of children with disabilities in general
assessments).

(ii)
The requirements
in paragraph (H)(2) of this rule (relating to transition planning and
transition services) do not apply with respect to the children whose
eligibility under Part B of the IDEA will end, because of their age, before
they will be eligible to be released from prison based on consideration of
their sentence and eligibility for early release.

(b)
Modifications of IEP or placement

(i)
Subject to paragraph (L)(4)(b)(ii) of
this rule, the IEP team of a child with a disability who is convicted as an
adult under state law and incarcerated in an adult prison may modify the
child's IEP or placement if the state has demonstrated a bona fide security or
compelling penological interest that cannot otherwise be
accommodated.

(ii)
The requirements
of paragraphs (E) and (H) of this rule do not apply with respect to the
modifications described in paragraph (L)(4)(b)(i) of this rule.

(M)
Nonpublic school placements by public school districts

(1)
Developing IEPs

(a)
Before a public school district places a
child with a disability in, or refers a child to, a nonpublic school or
facility, the district must initiate and conduct a meeting to develop an IEP
for the child in accordance with paragraphs (H) and (L) of this rule.

(b)
The district must ensure that a
representative of the nonpublic school or facility attends the meeting. If the
representative cannot attend, the district must use other methods to ensure
participation by the nonpublic school or facility, including individual or
conference telephone calls.

(2)
Reviewing and revising IEPs

(a)
After a child with a disability enters a
nonpublic school or facility, any meetings to review and revise the child's IEP
may be initiated and conducted by the nonpublic school or facility at the
discretion of the public school district.

(b)
If the nonpublic school or facility
initiates and conducts these meetings, the public school district must ensure
that the parents and a district representative:

(i)
Are involved in any decision about the
child's IEP; and

(ii)
Agree to any
proposed changes in the IEP before those changes are implemented.

(3)
Responsibility

Even if a nonpublic school or facility implements a child's
IEP, responsibility for compliance with this rule remains with the public
school district and the Ohio department of education.

(N)
Educational placements

Consistent with rule
3301-51-04 of the
Administrative Code, each school district must ensure that the parents of each
child with a disability are members of any group that makes decisions on the
educational placement of their child.

(O)
Alternative means of meeting
participation

When conducting IEP team meetings and placement meetings
pursuant to this rule, and Subpart E of Part B of the IDEA, and carrying out
administrative matters under Section 615 of the IDEA (such as scheduling,
exchange of witness lists, and status conferences), the parent of a child with
a disability and a school district may agree to use alternative means of
meeting participation, such as video conferences and conference calls.

Each school district is required to provide equitable services
and participation for eligible children who are attending a chartered or
non-chartered nonpublic school located within the district's geographical
boundaries. The school district must have timely and meaningful consultation
with the chartered and non-chartered nonpublic school officials to determine if
any children attending those nonpublic schools are eligible for equitable
services.

(B)
Child find
for parentally placed nonpublic school children with disabilities

(1)
General

Each school district must locate, identify, and evaluate all
children with disabilities who are enrolled by their parents in nonpublic,
including religious, elementary schools and secondary schools located in the
school district, in accordance with paragraphs (B)(2) to (B)(5) of this rule
and with rules
3301-51-01
and
3301-51-03 of the
Administrative Code.

(2)
Child find design

The child find process must be designed to ensure:

(a)
The equitable participation of parentally
placed nonpublic school children; and

(b)
An accurate count of those
children.

(3)
Activities

In carrying out the requirements of this rule, the school
district where the nonpublic school is located must undertake activities
similar to the activities undertaken for the district's public school
children.

(4)
Cost

The cost of carrying out the child find requirements in this
rule, including individual evaluations, shall not be considered in determining
if a school district has met its obligation under paragraph (E) of this rule.
The proportionate share of Part B funds set aside to serve children with
disabilities in nonpublic schools cannot be used for child find activities,
including individual evaluations.

(5)
Completion period

The child find process must be completed in a time period
comparable to that for students attending the school district where the
nonpublic school is located consistent with rules
3301-51-03 and
3301-51-06 of the
Administrative Code.

(6)
Students eligible for a scholarship

The district where the chartered or
non-chartered nonpublic school is located is responsible for additional child
find activities regarding children who are enrolled in either the "Autism
Scholarship Program," established by section
3310.41
of the Revised Code or the "Jon Peterson Special Needs Scholarship Program,"
established by section 3310.052 of the Revised Code, as well as a determination
of whether or not these children will receive services through a services plan,
as outlined in paragraphs (C) and (J) of this rule.

(7)
Determination of eligibility

The school district where the nonpublic school is located
shall conduct, either directly or through contract, a full and individual
initial evaluation in accordance with rule
3301-51-06 of the
Administrative Code for children suspected of having a disability.

(a)
If the parents do not make clear their
intention to keep their child enrolled in the nonpublic school, then the school
district where the nonpublic school is located shall provide the parents of
children who are determined eligible for services under rule
3301-51-06 of the
Administrative Code written documentation stating that the child's school
district of residence is responsible for making a free appropriate public
education (FAPE) available to the child.

(b)
A copy of this documentation shall be
sent to the child's school district of residence, provided the school district
where the nonpublic school is located receives written parental consent for
this information to be released to the child's school district of
residence.

(8)
School district of
residence

(a)
A school district of residence
is not required to pay for the cost of FAPE of a child with a disability at a
nonpublic school or facility if:

(i)
The
school district of residence made FAPE available to the child in the public
school; and

(ii)
The parents
elected to place the child in the nonpublic school or facility.

(b)
However, the school district
of residence must include the child described in paragraph (B)(7)(a) of this
rule in the population whose needs are addressed consistent with the
requirements of this rule.

(c)
If
the parents make clear their intention to keep their child with a disability
enrolled in a nonpublic school then the school district of residence need not
develop an individualized education program (IEP) for the child. If the child
with a disability who is in need of special education and related services
enrolls or re-enrolls in the school district of residence, the school district
of residence must make FAPE available.

(9)
Confidentiality
requirements

When conducting child find, evaluation and service activities,
the school district where the nonpublic school is located must be in compliance
with all confidentiality requirements of the Individuals with Disabilities
Education Act, as amended by the Individuals with Disabilities Education
Improvement Act of 2004, December 2004 (IDEA), and the Family Education Rights
and Privacy Act of 1974, August 1974 (FERPA).

(a)
If a child is enrolled or is going to
enroll in a nonpublic school that is not located in the school district of the
parent's residence, parental consent must be obtained before any personally
identifiable information about the child is released between officials in the
school district where the nonpublic school is located and officials in the
school district of the parent's residence.

(b)
The school district where the nonpublic
school is located shall follow all the IDEA and the FERPA confidentiality
requirements when serving children with disabilities attending chartered and
non-chartered nonpublic schools.

(10)
Continued
determination of eligibility

Children with disabilities enrolled by their parents in
nonpublic schools and receiving special education and any related services must
be reevaluated by the school district where the nonpublic school is
located:

(a)
Not more frequently than
once a year, unless the parent and the district agree otherwise; and

(b)
At least once every three years, unless
the parent and the district agree that a reevaluation is unnecessary.

(11)
Out-of-state children

Each school district in which nonpublic, including religious,
elementary schools and secondary schools are located must, in carrying out the
child find requirements in this rule, include parentally placed nonpublic
school children who reside in a state other than the state in which the
nonpublic schools that they attend are located.

(C)
Provision of services for parentally
placed nonpublic school children with disabilities: basic requirement

(1)
General

To the extent consistent with the number and location of
children with disabilities who are enrolled by their parents in nonpublic,
including religious, elementary schools and secondary schools located in the
school district, provision is made for the participation of those children in
the program assisted or carried out under Part B of the IDEA by providing them
with special education and related services, including direct services
determined in accordance with this rule.

(2)
Services plan for parentally placed
nonpublic school children with disabilities

In accordance with paragraph (C)(1) and paragraphs (I) to (K)
of this rule, a services plan must be developed and implemented for each
nonpublic school child with a disability who has been designated by the school
district in which the nonpublic school is located to receive special education
and related services under this rule.

(D)
Reporting requirements

(1)
The following children with disabilities,
who are enrolled by their parents in nonpublic schools, shall be counted and
reported to the Ohio department of education by the school district where the
nonpublic school is located, during the October education management
information system (EMIS) reporting period:

(a)
Children identified as eligible to
receive special education services under the IDEA, but who do not have a
services plan; and

(b)
Children who
are suspected of having a disability who are enrolled by their parents in
nonpublic schools and who are evaluated and determined not eligible to receive
special education and related services under the IDEA.

(2)
Children with disabilities who are
receiving special education services in accordance with a services plan funded
through Part B of the IDEA or auxiliary services funds shall be counted for the
December 1 child count report by the school district where the nonpublic school
is located to generate Part B special education funds.

(E)
Expenditures

(1)
Formula

The school district where the nonpublic school is located must
spend the following on providing special education and related services
(including direct services) to parentally placed nonpublic school children with
disabilities:

(a)
For children between
the ages of three and twenty-one, inclusive, an amount that is the same
proportion of the school district's total subgrant under Section 611(f) of the
IDEA as the number of nonpublic school children between the ages of three and
twenty-one, inclusive, who are enrolled by their parents in nonpublic,
including religious, elementary schools and secondary schools located in the
school district, is to the total number of children with disabilities in its
jurisdiction between the ages of three and twenty-one, inclusive.

(i)
For children aged three through five, an
amount that is the same proportion of the school district's total subgrant
under Section 619(g) of the IDEA as the number of parentally placed nonpublic
school children with disabilities aged three through five who are enrolled by
their parents in a nonpublic, including religious, elementary school located in
the school district, is to the total number of children with disabilities in
its jurisdiction aged three through five.

(ii)
As described in paragraph (E)(1)(a)(i)
of this rule, children aged three through five are considered to be parentally
placed nonpublic school children with disabilities enrolled by their parents in
nonpublic, including religious, elementary schools, if they are enrolled in a
nonpublic school that meets the definition of elementary school in rule
3301-51-01
of the Administrative Code.

(b)
If the school district where the
nonpublic school is located has not expended for equitable services all of the
funds described in paragraph (E)(1)(a) of this rule by the end of the fiscal
year for which congress appropriated the funds, the school district must
obligate the remaining funds for special education and related services
(including direct services) to parentally placed nonpublic school children with
disabilities during a carry-over period of one additional year.

(2)
Calculating proportionate
amount

(a)
In calculating the proportionate
amount of federal funds to be provided for parentally placed nonpublic school
children with disabilities, the school district where the nonpublic school is
located, after timely and meaningful consultation with representatives of
nonpublic schools under paragraph (F) of this rule, must conduct a thorough and
complete child find process to determine the number of parentally placed
children with disabilities attending nonpublic schools located in the school
district.

(b)
The annual count of
the number of parentally placed nonpublic school children with disabilities
must be used to determine the amount that the school district where the
nonpublic school is located must spend on providing special education and
related services to parentally placed nonpublic school children with
disabilities in the subsequent fiscal
year.

(3)
Supplement,
not supplant

State and local funds may supplement and in no case supplant
the proportionate amount of federal funds required to be expended for
parentally placed nonpublic school children with disabilities under this
rule.

(4)
Use of federal
funds provided through the IDEA

The amount of special education IDEA Part B and early
childhood special education flow-through benefits that the school district
where the nonpublic school is located must allocate for eligible nonpublic
school children is determined as follows:

(a)
The proportionate share allocation is
calculated as specified in appendix B "Proportionate Share Calculation" to 34
C.F.R. Part 300 (October 13, 2006). For purposes of the calculation of the
proportionate share under appendix B, "LEA" means the school district in which
the nonpublic school is located and "private school" means nonpublic school as
defined in paragraph (B)( 40) of rule
3301-51-01
of the Administrative Code

(b)
The
calculation of the proportionate share of IDEA Part B special education funds
is based upon a number of factors including child count, public and nonpublic
population counts and the number of children within the district living in
poverty. Due to these factors, each school district's calculation will vary
based on its individual data and a statewide per-child allocation cannot be
determined.

(5)
Use of
state funds and provision of auxiliary services

(a)
Opportunity for participation

Auxiliary services funds are generated for each school
district based upon the number of children attending chartered nonpublic
elementary or secondary schools within the district. Auxiliary services funds
may be used to provide services to children with disabilities who are attending
chartered nonpublic schools within the boundaries of a given school district
(sections
3317.024
and
3317.06
of the Revised Code).

(b)
Approval of services to be provided

The school district within whose boundaries the chartered
nonpublic school is located has the responsibility for approving the chartered
nonpublic school's request for services prior to the provision of such
services.

(c)
Location of
services

Personnel funded with auxiliary services funds may provide
services either on or off the premises of the chartered nonpublic school to
children enrolled in a religiously affiliated or nonsectarian school. If
services are provided in the public school or in public centers, transportation
to and from such facilities shall be provided by the school district in which
the chartered nonpublic school is located (division (I) of section
3317.06
of the Revised Code).

(d)
Documentation of services

If a child is unilaterally placed by the child's parents in a
chartered nonpublic school and the child will be receiving special education
and related services using both Part B funds and auxiliary funds or using
auxiliary funds only, the services provided by auxiliary funds must be clearly
marked as auxiliary services on the child's services plan. These services are
not subject to the IDEA complaint or due process procedures.

(F)
Consultation

To ensure timely and meaningful consultation, the school
district where the nonpublic school is located must consult with nonpublic
school representatives and representatives of parents of parentally placed
nonpublic school children with disabilities during the design and development
of special education and related services for the children regarding the
following:

(1)
Child find

The child find process, including:

(a)
How parentally placed nonpublic school
children suspected of having a disability can participate equitably;
and

(b)
How parents, teachers, and
nonpublic school officials will be informed of the process.

(2)
Proportionate share of funds

The determination of the proportionate share of federal funds
available to serve parentally placed nonpublic school children with
disabilities under paragraph (E) of this rule, including the determination of
how the proportionate share of those funds was calculated. Consultations shall
take into consideration the number of these children and their needs and
location.

(3)
Consultation
process

The consultation process among the school district where the
nonpublic school is located, nonpublic school officials, and representatives of
parents of parentally placed nonpublic school children with disabilities,
including how the process will operate throughout the school year to ensure
that parentally placed children with disabilities identified through the child
find process can meaningfully participate in special education and related
services.

(4)
Provision of
special education and related services

How, where, and by whom special education and related services
will be provided for parentally placed nonpublic school children with
disabilities, including a discussion of:

(a)
The types of services, including direct
services and alternate service delivery mechanisms; and

(b)
How special education and related
services will be apportioned if funds are insufficient to serve all parentally
placed nonpublic school children; and

(c)
How and when those decisions will be
made.

(5)
Written
explanation by the school district regarding services

How, if the school district where the nonpublic school is
located disagrees with the views of the nonpublic school officials on the
provision of services or the types of services (whether provided directly or
through a contract), the school district where the nonpublic school is located
shall provide to the nonpublic school officials a written explanation of the
reasons why the school district chose not to provide services directly or
through a contract.

(G)
Written affirmation

(1)
When timely and meaningful consultation
has occurred, the school district where the nonpublic school is located must
obtain a written affirmation signed by the representatives of participating
nonpublic schools.

(2)
If the
representatives do not provide the affirmation within a reasonable period of
time or choose not to participate, the school district where the nonpublic
school is located must document its consultation attempts and forward
documentation of the consultation process to the Ohio department of education.
If a nonpublic school chooses not to participate, the parent may contact the
school district in which the nonpublic school is located to request equitable
services for the child.

(H)
Compliance

(1)
General

A nonpublic school official has the right to submit a
complaint to the Ohio department of education, office for exceptional children,
alleging that the school district where the nonpublic school is located:

(a)
Did not engage in consultation that was
meaningful and timely; or

(b)
Did
not give due consideration to the views of the nonpublic school
official.

(2)
Procedure

(a)
If the nonpublic school official wishes
to submit a complaint, the official must provide to the Ohio department of
education, office for exceptional children the basis of the noncompliance by
the school district with the applicable nonpublic school provisions in this
rule; and

(b)
The school district
where the nonpublic school is located must forward the appropriate
documentation to the Ohio department of education, office for exceptional
children, in accordance with paragraph (L) of this rule.

(c)
If the nonpublic school official is
dissatisfied with the decision of the Ohio department of education, office for
exceptional children, the official may submit a complaint to the secretary of
the U.S. department of education by providing the information on noncompliance
described in paragraph (H)(2)(a) of this rule. The Ohio department of
education, office for exceptional children shall forward the appropriate
documentation to the secretary of the U.S. department of education.

(I)
Equitable services
determined

(1)
No individual right to special
education and related services

No parentally placed nonpublic school child with a disability
has an individual right to receive some or all of the special education and
related services that the child would receive if enrolled in a public
school.

(2)
Decisions

(a)
Decisions about the services that will be
provided to parentally placed nonpublic school children with disabilities under
this rule must be made in accordance with paragraphs (I)(3) and (F)(3) of this
rule.

(b)
The school district where
the nonpublic school is located must make the final decisions with respect to
the services to be provided to eligible parentally placed nonpublic school
children with disabilities.

(3)
Services plan for each child served under
this rule

If a child with a disability is enrolled in a religious or
other nonpublic school by the child's parents and will receive special
education or related services from the school district where the nonpublic
school is located, the school district must:

(a)
Initiate and conduct meetings to develop,
review, and revise a services plan for the child, in accordance with paragraph
(J)(2) of this rule; and

(b)
Ensure
that a representative of the religious or other nonpublic school attends each
meeting. If the representative cannot attend, the school district where the
nonpublic school is located shall use other methods to ensure participation by
the religious or other nonpublic school, including individual or conference
telephone calls.

(J)
Equitable services provided

(1)
General

(a)
The services provided to parentally
placed nonpublic school children with disabilities must be provided by
personnel meeting the same standards as personnel providing services in the
public schools, except that nonpublic elementary school and secondary school
teachers who are providing equitable services to parentally placed nonpublic
school children with disabilities do not have to meet the highly qualified
special education teacher requirements of rule
3301-51-01
of the Administrative Code.

(b)
Parentally placed nonpublic school children with disabilities may receive a
different amount of services than children with disabilities in public
schools.

(2)
Services
provided in accordance with a services plan

(a)
Each parentally placed nonpublic school
child with a disability who has been designated to receive services under
paragraph (C) of this rule must have a services plan that describes the
specific special education and related services that the public school district
where the nonpublic school is located will provide to the child in light of the
services that the district has determined, through the process described in
this rule, it will make available to parentally placed nonpublic school
children with disabilities.

(b)
The
services plan must:

(i)
Be developed to meet
IEP requirements as outlined in paragraph (H) of rule
3301-51-07
of the Administrative Code, to the extent appropriate;

(ii)
Be individually developed for each
participating child using the services plan form, i.e., IEP form, included in
the school district's approved forms; and

(iii)
Be developed, reviewed, and revised
consistent with paragraphs (I) to (L) of rule
3301-51-07
of the Administrative Code.

(3)
Development of the services plan

(a)
The school district where the nonpublic
school is located, whether or not it is the child's school district of
residence, convenes the services plan meeting, conference call, or video
conference for each eligible child who will receive special education and any
related services.

(b)
A nonpublic
school representative must participate in the development or revision of the
services plan.

(c)
The school
district where the nonpublic school is located is required to and is
responsible for conducting a meeting, conference call, or video conference at
least annually to review and revise, if appropriate, each child's services
plan.

(d)
Neither the IDEA nor
state law makes provisions for nonpublic schools to develop student services
plans. Any written plan developed by a nonpublic school will not be recognized
as a services plan under federal or state laws.

(4)
Provision of equitable services

(a)
The provision of services pursuant to
paragraphs (K) to (O) of this rule must be provided:

(i)
By employees of a public agency;
or

(ii)
Through contract by the
public agency with an individual, association, agency, organization, or other
entity.

(b)
Special
education and related services provided to parentally placed nonpublic school
children with disabilities, including materials and equipment, must be secular,
neutral, and nonideological.

(K)
Location of services and transportation

(1)
Services on nonpublic school premises

(a)
Services to parentally placed nonpublic
school children with disabilities may be provided on the premises of nonpublic,
including religious, schools, to the extent consistent with law.

(b)
The school district where the nonpublic
school is located will determine where services will be provided. Services may
be provided at the nonpublic school with the permission of the nonpublic
school.

(2)
Transportation

(a)
General

(i)
If necessary for the child to benefit
from or participate in the services provided under this rule, a parentally
placed nonpublic school child with a disability must be provided
transportation:

(a)
From the child's school
or the child's home to a site other than the nonpublic school; and

(b)
From the service site to the nonpublic
school, or to the child's home, depending on the timing of the
services.

(b)
Transportation for parentally placed chartered nonpublic school children

(i)
Notwithstanding the provisions of
paragraph (K)(2)(a) of this rule, a child with a disability who is parentally
placed in a chartered nonpublic school shall be entitled to transportation to
the same degree as any child without disabilities who is attending a chartered
nonpublic school even though transportation is not necessary for the child to
benefit from or participate in the services provided under this rule.

(ii)
A child with a disability parentally
placed in a chartered nonpublic school in grades kindergarten through eight who
lives more than two miles from the chartered nonpublic school will be
transported by the school district of residence unless one of the following
applies:

(a)
The direct travel time, as
measured by riding in a school bus, exceeds thirty minutes from the public
school building to which the child with a disability would be assigned if
attending the public school to the chartered nonpublic school the child is
attending; or

(b)
Where it is
impractical to transport a pupil by school conveyance, a board of education may
offer payment in lieu of providing such transportation in accordance with
section
3327.02
of the Revised Code.

(iii)
Children with disabilities who are
parentally placed in a chartered nonpublic school and are in grades nine
through twelve may be offered transportation by their school district of
residence in accordance with the above rules, but are not entitled to
transportation.

(iv)
No
transportation of any pupils shall be provided by any board of education to or
from any school which in the selection of pupils, faculty members or employees,
practices discrimination against any person on the grounds of race, color,
religion or national origin.

(c)
Cost of transportation

The cost of the transportation described in paragraph
(K)(2)(a)(i) of this rule may be included in calculating whether the school
district where the nonpublic school is located has met the requirements of
paragraph (E) of this rule.

(L)
Due process complaints and state
complaints

(1)
The right to request a due
process hearing does not apply to the provision of special education and
related services the school district has agreed to provide through a services
plan. However, a parent of a child with a suspected disability, or a child
identified as having a disability, who is enrolled in a nonpublic school may
initiate a due process hearing regarding child find for parentally placed
nonpublic school children with disabilities, including location,
identification, evaluation and reevaluation of the child.

(2)
Child find complaints: to be filed with
the school district in which the nonpublic school is located.

(a)
The due process and mediation procedures
in rule
3301-51-05
of the Administrative Code apply to complaints that the school district where
the nonpublic school is located has failed to meet the child find requirements
in paragraph (B) of this rule, including the requirements for location,
identification, evaluation and reevaluation of the child.

(b)
Any due process complaint regarding the
child find requirements as described in paragraph (L)(2)(a) of this rule must
be filed with the school district in which the nonpublic school is located and
a copy must be forwarded to the Ohio department of education, office for
exceptional children.

(3)
Complaint rights of parents of children
with disabilities placed in nonpublic schools

The parents of a child with a disability, who have
unilaterally placed the child in a nonpublic school, have the right to file a
formal written complaint under the IDEA with the Ohio department of education,
office for exceptional children. In accordance with applicable law and
regulations, complaints may be filed regarding:

(a)
The provision of services, as stated on
the child's services plan;

(b)
The
amount of funds, including the calculation of the proportionate share, child
count and non-supplanting provisions, for parentally placed children with
disabilities enrolled in nonpublic schools;

(c)
The required consultation for parentally
placed children with disabilities enrolled in nonpublic schools;

(d)
Written affirmation signed by the
representatives of participating nonpublic schools;

(e)
Determination of equitable services for
the group of parentally placed children with disabilities enrolled in nonpublic
schools;

(f)
Provision of equitable
services for the group of parentally placed children with disabilities enrolled
in nonpublic schools;

(g)
Location
of services and transportation for parentally placed children with disabilities
enrolled in nonpublic schools;

(h)
Requirement that federal funds not benefit a nonpublic school;

(i)
Use of personnel, including use of public
school personnel and nonpublic school personnel for parentally placed children
with disabilities enrolled in nonpublic schools;

(j)
Prohibition of separate classes on the
basis of school enrollment or religion if the classes are at the same site and
the classes include students enrolled in public schools and students enrolled
in nonpublic schools;

(k)
The use
of property, equipment and supplies purchased with IDEA Part B funds for the
benefit of parentally placed nonpublic school children with disabilities
enrolled in nonpublic schools.

(4)
State complaints

(a)
Any complaint that the Ohio department of
education or the school district where the nonpublic school is located has
failed to meet the requirements in this rule must be filed in accordance with
the procedures described in rule
3301-51-05
of the Administrative Code.

(b)
A
complaint filed by a nonpublic school official under paragraph (H)(1) of this
rule must be filed with the Ohio department of education, office for
exceptional children, in accordance with the procedures in paragraph (H)(2) of
this rule.

(M)
Requirement that funds not benefit a
nonpublic school

(1)
A school district may not
use funds provided under Section 611 or 619 of the IDEA to finance the existing
level of instruction in a nonpublic school or to otherwise benefit the
nonpublic school.

(2)
The school
district where the nonpublic school is located must use funds provided under
Part B of the IDEA to meet the special education and related services needs of
parentally placed nonpublic school children with disabilities, but not for
meeting:

(a)
The needs of a nonpublic school;
or

(b)
The general needs of the
students enrolled in the nonpublic school.

(N)
Use of personnel

(1)
Use of public school personnel

A school district may use funds available under Sections 611
and 619 of the IDEA to make public school personnel available in other than
public facilities:

(a)
To the extent
necessary to provide services under this rule for parentally placed nonpublic
school children with disabilities; and

(b)
If those services are not normally
provided by the nonpublic school.

(2)
Use of nonpublic school personnel

A school district may use funds available under Sections 611
and 619 of the IDEA to pay for the services of an employee of a nonpublic
school to provide services under this rule if:

(a)
The employee performs the services
outside of his or her regular hours of duty; and

(b)
The employee performs the services under
public supervision and control.

(O)
Separate classes prohibited

A school district may not use funds available under Section
611 or 619 of the IDEA for classes that are organized separately on the basis
of school enrollment or religion of the children if:

(1)
The classes are at the same site;
and

(2)
The classes include
children enrolled in public schools and children enrolled in nonpublic
schools.

(P)
Property,
equipment, and supplies

(1)
A school district
must control and administer the funds used to provide special education and
related services under paragraphs (I) to (K) of this rule, and hold title to
and administer materials, equipment, and property purchased with those funds
for the uses and purposes provided in the IDEA.

(2)
The school district may place equipment
and supplies in a nonpublic school for the period of time needed for the Part B
program.

(3)
The school district
must ensure that the equipment and supplies placed in a nonpublic school:

(a)
Are used only for Part B purposes;
and

(b)
Can be removed from the
nonpublic school without remodeling the nonpublic school facility.

(4)
The school district must
remove equipment and supplies from a nonpublic school if:

(a)
The equipment and supplies are no longer
needed for Part B purposes; or

(b)
Removal is necessary to avoid unauthorized use of the equipment and supplies
for other than Part B purposes.

(5)
No funds under Part B of the IDEA may be
used for repairs, minor remodeling, or construction of nonpublic school
facilities.

(Q)
State
assessment considerations

(1)
Children with
disabilities who are parentally placed in chartered nonpublic schools are
required to take and pass state assessments
required for graduation, as outlined in rule
3301-13-01
of the Administrative Code, in order to receive an Ohio high school diploma
unless the child is excused from the consequences of the testing requirement as
set forth in paragraph (Q)(2) of this rule. It is expected that most children
with disabilities will take and pass state assessments
.

(2)
If a child has a disability that requires
a curriculum that is modified substantially from what the state assessment
measures, the child may be excused from taking one or more of the state
assessments as outlined in rule
3301-13-01
of the Administrative Code. The IDEA requirements for alternate assessment do
not apply to children with disabilities enrolled in chartered nonpublic
schools.

(3)
A child, parentally
placed in a chartered nonpublic school, may receive allowable accommodations
when taking state assessments or may be excused from the consequences of state
assessments as outlined in rule
3301-13-01
of the Administrative Code if one of the following conditions apply:

(a)
A current services plan, documenting that
the child is excused from the consequences of the state assessment, is in
place. This plan has been developed by the services plan team, including the
parent, and special education services are being provided by federally funded
personnel or auxiliary personnel or a combination of both federally funded and
auxiliary funded personnel; or

(b)
A current services plan, documenting that the child will receive allowable
accommodations on the state assessment, is in place. This plan has been
developed by the services plan team, including the parent, and special
education services are being provided by federally funded personnel or
auxiliary personnel or a combination of both federally funded and auxiliary
funded personnel; or

(c)
The
chartered nonpublic school has developed a written plan, documenting that the
child is excused from the consequences of the state assessment. The written
plan must meet all of the requirements of rule
3301-13-10
of the Administrative Code; or

(d)
The chartered nonpublic school has developed a written plan, documenting that
the child will receive allowable accommodations on the state assessment. The
written plan must meet all of the requirements of rule
3301-13-10
of the Administrative Code.

(4)
Chartered nonpublic school personnel
cannot prohibit children with disabilities from taking any state assessment
that children without disabilities of the same age and grade level are required
to take.

(5)
Chartered nonpublic
school personnel cannot force a child who would otherwise take an alternate
assessment to take any state assessment that children without disabilities of
the same age and grade level are required to take.

(6)
Chartered nonpublic school personnel
cannot deny a diploma to a child with a disability who has been excused from
the consequences of the state assessment or who would otherwise take an
alternate assessment if all other requirements for graduation have been
met.

(1)
Children who are participating in the "Autism Scholarship Program," established
by section
3310.41
of the Revised Code, or the "Jon Peterson Scholarship Program," established by
section
3310.52
of the Revised Code (the "scholarship programs"), and attending either a
chartered or non-chartered nonpublic school may be eligible to
receive services funded through IDEA
private school proportional share funds if the children meet the eligibility
requirements pursuant to Chapters 3301-103 and 3301-101 of the Administrative
Code. Children who are participating in the autism scholarship program and
attending either a chartered or non-chartered nonpublic school may be eligible
to participate in the early childhood special education flow-through
benefits if the children meet the eligibility requirements as outlined in
Chapter
3301-103 of the Administrative Code.

(a)
Evaluations and re-evaluations shall be conducted in
accordance with rule
3301-51-06 of the
Administrative Code and Chapters 3301-103 and 3301-101 of the Administrative
Code.

(b)
The school district of residence shall create the IEP
that is required for children to participate in the scholarship programs.

(2)
Children who are
attending a chartered nonpublic school and are receiving services under a
scholarship program may also receive special education and related services
through auxiliary services funds, provided the services paid for by auxiliary
services funds are not the same services that are being paid for with
scholarship funds. The auxiliary services fund must provide special education
and related services that are in addition to the services funded by a
scholarship program.

(3)
The district of residence is not required to make FAPE
available to a child with a disability who resides in the district and is
participating in either scholarship program, however, the parent of a child
participating in either scholarship program has a right to file a written
complaint or a request for a due process hearing as provided by rule
3301-51-05
of the Administrative Code. A complaint or request for a due process hearing
may allege that the district of residence violated a requirement of IDEA, but
may not allege a violation of any requirements involving the implementation of
the IEP and whether the child has received FAPE.

Each school district shall ensure that to the maximum extent
appropriate, children with disabilities, including children in public or
nonpublic institutions or other care facilities, are educated with children who
are nondisabled.

(B)
LRE
requirements

General

(1)
Except as
provided in rule
3301-51-07
of the Administrative Code regarding children with disabilities in adult
prisons, each school district shall adopt and implement written policies and
procedures approved by the Ohio department of education, office for exceptional
children, to ensure that the school district meets the LRE requirements of this
rule.

(2)
Each school district must
ensure that:

(a)
To the maximum extent
appropriate, children with disabilities, including children in public or
nonpublic institutions or other care facilities, are educated with children who
are nondisabled; and

(b)
Special
classes, separate schooling, or other removal of children with disabilities
from the regular educational environment occurs only if the nature or severity
of the disability is such that education in regular classes with the use of
supplementary aids and services cannot be achieved satisfactorily.

(C)
Continuum of
alternative placements

(1)
Each school
district must ensure that a continuum of alternative placements is available to
meet the needs of children with disabilities for special education and related
services.

(2)
The continuum
required in paragraph (C)(1) of this rule must:

(a)
Include the alternative placements listed
in the definition of special education under rule
3301-51-01
of the Administrative Code (instruction in regular classes, special classes,
special schools, home instruction, and instruction in hospitals and
institutions); and

(b)
Make
provision for supplementary services (such as resource room or itinerant
instruction) to be provided in conjunction with regular class
placement.

(D)
Placements

In determining the educational placement of a child with a
disability, including a preschool child with a disability, each school district
must ensure that:

(1)
The placement
decision:

(a)
Is made by a group of persons,
including the parents and other persons knowledgeable about the child, the
meaning of the evaluation data, and the placement options; and

(b)
Is made in conformity with the LRE
provisions in paragraphs (B) to (E) of this rule.

(2)
The child's placement:

(a)
Is determined at least
annually;

(b)
Is based on the
child's individualized education program (IEP); and

(c)
Is as close as possible to the child's
home;

(3)
Unless the IEP
of a child with a disability requires some other arrangement, the child is
educated in the school that the child would attend if nondisabled;

(4)
In selecting the LRE, consideration is
given to any potential harmful effect on the child or on the quality of
services that the child needs; and

(5)
A child with a disability is not removed
from education in age-appropriate regular classrooms solely because of needed
modifications in the general education curriculum.

(E)
Nonacademic settings

In providing or arranging for the provision of nonacademic and
extracurricular services and activities, including meals, recess periods, and
the services and activities set forth in rule
3301-51-02
of the Administrative Code, each school district must ensure that each child
with a disability participates with nondisabled children in the extracurricular
services and activities to the maximum extent appropriate to the needs of that
child. The school district must ensure that each child with a disability has
the supplementary aids and services determined by the child's IEP team to be
appropriate and necessary for the child to participate in nonacademic
settings.

(F)
Length of
school day and school year

Each child with a disability shall be ensured:

(1)
A school day consistent with rule
3301-35-06
of the Administrative Code and consistent in length to that provided
nondisabled children, with special education and related services being
provided during the regular school day unless otherwise indicated on the IEP;
and

(2)
A school year consistent
with rule
3301-35-06
of the Administrative Code and consistent in length to that provided to
nondisabled children with special education and related services being
implemented at the beginning of each school year.

(G)
Role of preschool and school-age service
providers

(1)
The school district shall
ensure that preschool and school-age service providers for children with
disabilities participate in the district's strategic planning process as
described in paragraph (A)(9) of rule
3301-35-03 of
the Administrative Code.

(2)
The
school district shall assign early childhood, and school-age intervention
specialists, or related service specialists to meet the unique educational
needs of each child with a disability. The school-age service provider may
provide indirect or direct services in one or any combination of instructional
groupings, including large group, small group, individual instruction, or
parent and teacher training and consultation.

(3)
The school district shall ensure early
childhood and school-age intervention specialists, or related service
specialists:

(a)
Serve children with
disabilities to assure a free appropriate public education (FAPE) and may serve
children who are not disabled where needs for these services are
identified;

(b)
Support regular
education teachers in serving and/or consulting about children with and without
disabilities so that the regular education personnel, in partnership with the
special education service providers, can implement the child's IEP in the least
restrictive environment;

(c)
Assist
in organizing and facilitating supplemental supports provided within the
regular classroom;

(d)
Design
parent involvement activities; and

(e)
Implement educational interventions and
specially designed instruction which means adapting, as appropriate, to the
needs of the eligible child, the content, methodology, or delivery of
instruction:

(i)
To address the unique needs
of the child that result from the child's disability; and

(ii)
To ensure access to the general
curriculum so that the child can meet the educational standards adopted by the
state board of education that apply to all children.

(4)
The school district shall
ensure services of paraprofessionals and related service assistants are
supervised in accordance with Ohio law.

(H)
Personnel qualifications and personnel
development

(1)
General

The school district must ensure that all personnel necessary
to carry out the purposes of Part B of the Individuals with Disabilities
Education Act, as amended by the Individuals with Disabilities Education
Improvement Act of 2004, December 2004 (IDEA) shall be employed and shall be
appropriately and adequately prepared and trained, including that those
personnel have the content knowledge and skills to serve children with
disabilities. Personnel shall have appropriate certification or licensure as
defined by Chapter 3301-24 of the Administrative Code.

(2)
Related services personnel and
paraprofessionals

The qualifications under paragraph (H)(1) of this rule must
include qualifications for related services personnel and paraprofessionals
that:

(a)
Are consistent with
state-approved or state-recognized certification, licensing, registration, or
other comparable requirements that apply to the professional discipline in
which those personnel are providing special education or related services;
and

(b)
Ensure that related
services personnel who deliver services in their discipline or profession:

(i)
Meet the requirements of paragraph
(H)(2)(a) of this rule; and

(ii)
Have not had certification or licensure requirements waived on an emergency,
temporary, or provisional basis; and

(iii)
Allow paraprofessionals and assistants
who are appropriately trained and supervised, in accordance with state law,
regulation, or written policy, in meeting the requirements of this rule, to be
used to assist in the provision of special education and related services under
this rule to children with disabilities.

(a)
Paraprofessionals providing services to children with disabilities shall hold
an educational aide permit or associate license and meets requirements under
paragraph ( I) of rule
3301-24-05 of the
Administrative Code. Any school district that employs a paraprofessional shall
have written policies and procedures outlining:

(i)
Criteria for staff selection;

(ii)
A planned sequence of continuing
education and annual training opportunities to enable
the paraprofessional to continue to develop the knowledge and skills that are
specific to the students with whom the paraprofessional works, including
following lesson plans, implementing follow-up instructional procedures and
activities, supporting effective classroom organization and behavior
management, and working effectively with teachers and as part of an
instructional team;

(iii)
A process
for direct continuing supervision by one or more
licensed teachers or service providers and evaluation of the services of
such personnel; and

(iv)
A job
description of the role and function of a paraprofessional.

(b)
Personnel serving as school
psychology interns shall hold a temporary pupil service license as required by
paragraph (A)(5) of rule
3301-23-44
of the Administrative Code and shall be enrolled in school psychologist
preparation programs while completing the program internship.

(c)
Require that personnel serving as
physical therapists are licensed pursuant to Chapter 4755. of the Revised Code
to practice physical therapy; physical therapist assistants are licensed
pursuant to Chapter 4755. of the Revised Code to assist in the provision of
physical therapy services under the supervision of a licensed physical
therapist; and physical therapists and physical therapist assistants practice
in accordance with sections
4755.40
to
4755.56
of the Revised Code and Chapters 4755-21 to 4755-29 of the Administrative
Code.

(d)
Require that personnel
serving as occupational therapists are licensed pursuant to Chapter 4755. of
the Revised Code to practice occupational therapy; occupational therapy
assistants are licensed pursuant to Chapter 4755. of the Revised Code to assist
in the provision of occupational therapy services under the supervision of a
licensed occupational therapist; and occupational therapists and occupational
therapy assistants practice in accordance with sections
4755.04
to
4755.13 of the Revised
Code and Chapters 4755-1 to 4755-9 of the Administrative Code.

(3)
Qualifications for special education teachers

The qualifications described in paragraph (H)(1) of this rule
must ensure that each person employed as a public school special education
teacher in the state who teaches in an elementary school, middle school, or
secondary school is highly qualified as a special education teacher by the
deadline established in Section 1119(a)(2) of the Elementary and Secondary
Education Act of 1965, as amended by the No Child Left Behind Act of 2001,
January 2002,
20 U.S.C. 6301(ESEA).

(4)
Qualifications for supervisory
personnel

Personnel with supervisory responsibilities for the delivery
of special education services shall be appropriately licensed.

(5)
Policy

(a)
School districts in the state shall take
measurable steps to recruit, hire, train, and retain highly qualified personnel
to provide special education and related services under this rule to children
with disabilities.

(b)
Personnel
shall be provided professional development that aligns with school district
goals and objectives and meets the changing needs of children as required by
paragraph (A)(8) of rule
3301-35-05
of the Administrative Code.

(6)
Rule of construction

Notwithstanding any other individual right of action that a
parent or child may maintain under this rule, nothing in this rule shall be
construed to create a right of action on behalf of an individual child or a
class of children for the failure of a particular Ohio department of education
or school district employee to be highly qualified, or to prevent a parent from
filing a complaint about staff qualifications with the Ohio department of
education as provided for under this rule.

(I)
Service provider
workload
determination for delivery of services

School districts, county boards of
developmental disabilities and other educational agencies shall determine
workload for an individual service provider based upon all of the factors set
forth in paragraphs (I)(1) to (I)(3) of this rule.

(1)
Workload for an individual
service provider shall be determined by the following proces, which
incorporates the following components:

(a)
All areas of service provided to children
with and without disabilities, including , but not limited to school duties, staff meetings,
professional development, supervisions, travel/transitions, screening,
assessment, evaluation, progress documentation and reporting, secondary
transition service planning, conference/consultation pertaining to individual
students, documentation for individual students, and third party billing
requirements .

(b)
The
severity of each eligible child's need, and the level and frequency of services
necessary to provide a free and appropriate
public education.

(c)
Time
needed for planning in accordance with paragraph (A)(9) of rule
3301-35-05
of the Administrative Code including statutory and/or
contractual agreements applicable to the educational agency.

(2)
School-age service providers will provide
specially designed instruction in
accordance with the following requirements limiting the number of students per
licensed professional, as set forth in paragraphs (I)(2)(a) to (I)(2)(g) of
this rule.

(a)
An intervention
specialist shall serve no more than sixteen children at the elementary, middle,
or junior high school levels, or no more than twenty-four children at the high
school level with intellectual
disabilities.

(i)
No more than twelve
children at the elementary, middle, or junior high school levels, or no more
than sixteen children at the senior high school level shall be served during
any one instruction period.

(ii)
The age range shall not exceed sixty months within any one instructional
period.

(b)
An
intervention specialist shall serve no more than sixteen children at the
elementary, middle, or junior high school levels, or no more than twenty-four
children at the high school level with specific learning disabilities.

(i)
No more than twelve children shall be
served during any one instructional period.

(ii)
The age range shall not exceed sixty
months within any one instructional period.

(c)
An intervention specialist shall serve no
more than ten children with hearing impairments, visual impairments, orthopedic
impairments, and/or other health impairments.

(i)
No more than eight children shall be
served during any one instructional period.

(ii)
The age range shall not exceed
forty-eight months within any one instructional period.

(d)
An intervention specialist shall serve no
more than twelve children with emotional disturbances.

(i)
No more than ten children shall be served
during any one instructional period.

(ii)
The age range shall not exceed
forty-eight months within any one instructional period.

(iii)
There should be a plan on file and in
operation in the school district to provide appropriate classroom management
and crisis intervention support.

(iv)
In the absence of a plan, the school
district shall employ at least one full-time paraprofessional in each special
class for these children.

(e)
An intervention specialist shall serve no
more than eight children with multiple disabilities.

(i)
No more than eight children shall be
served during any one instructional period.

(ii)
The age range shall not exceed sixty
months within any one instructional period.

(iii)
There shall be at least one full-time
paraprofessional in each special class for children with multiple
disabilities.

(f)
An
intervention specialist shall serve no more than six children with autism,
deaf-blindness and/or traumatic brain injury.

(i)
The age range shall not exceed sixty
months within any one instructional period; and

(ii)
There shall be at least one full-time
paraprofessional in each special class for these children.

(g)
An intervention specialist may serve
multiple categories of children with disabilities. The ratio for this service
shall be determined in accordance with paragraph (I)(1) of this rule and shall
not exceed sixteen children at the elementary, middle, or junior high school
levels, or no more than twenty-four at the high school level.

(i)
No more than sixteen children at the
elementary, middle, or junior high school levels, or no more than twenty four
children at the high school level shall be served during any one instructional
period.

(ii)
The age range shall
not exceed sixty months within any one instructional period.

(iii)
Indirect and direct services shall be
provided in accordance with each child's IEP.

(3)
Related service providers for preschool
and school-age children with disabilities shall provide
specially designed instruction in accordance with the
following requirements limiting the number of students per licensed
progressional:

(a)
An adapted physical education specialist
shall provide services to no more than one hundred children with
disabilities.

(b)
An audiologist
shall provide services to no more than one hundred school-age children with
disabilities or no more than seventy-five preschool children with
disabilities.

(c)
An occupational
therapist shall provide services to no more than fifty school-age children with
disabilities or no more than forty preschool children with disabilities. An
occupational therapy assistant who provides occupational therapy techniques
must do so under the general supervision of an occupational therapist as
required by rules
4755-7-01
and
4755-7-03 of the
Administrative Code.

(d)
An
orientation and mobility instructor shall provide services to no more than
fifty school-age children with disabilities or no more than forty preschool
children with disabilities.

(e)
A
physical therapist shall provide services to no more than fifty school-age
children with disabilities or no more than forty preschool children with
disabilities. A physical therapist assistant who assists in the provision of
physical therapy services must do so under the supervision of a physical
therapist as required by Chapter 4755-27 of the Administrative Code.

(f)
A speech and language pathologist shall
provide services to no more than

:

(i)
Eighty
school-age children with disabilities, or

(ii)
No more than
fifty school-age children with multiple disabilities, hearing impairments,
autism, or orthopedic/other health impairments, or

(iii)
No more than
fifty preschool children with disabilities, or

(iv)
A combination
of preschool and school-age children with disabilities or children with
multiple disabilities, hearing impairment, autism, or orthopedic/other health
impairments proportionate to the ratios set forth in paragraphs (I)(3)(f)(i) to
(I)(3)(f)(iii) of this rule.

Each school district shall provide
speech and language pathology services as required by division (F) of section
3317.15
of the Revised Code.

(g)
A school psychologist shall provide
services to no more than :

(i)
One hundred
twenty-five school-age children with disabilities, or

(ii)
Seventy-five
preschool children with disabilities, or

(iii)
A combination
of preschool and school-age children with disabilities proportionate with the
ratios set forth in paragraphs (I)(3)(g)(i) and (I)(3)(g)(ii) of this
rule.

Psychological services are defined in
paragraph (B)(54)(b)(xiii) of rule
3301-51-01
of the Administrative Code. Each school district shall provide school
psychological services as required by division (F) of section
3317.15
of the Revised Code.

(4)
Transition services

(a)
A work-study coordinator shall provide
services to seventy-five children with disabilities.

(b)
A vocational special education
coordinator shall provide services to fifty children with
disabilities.

(5)
Supervisory services

(a)
A supervisor shall
provide services to twenty intervention specialists who are providing services
to children with disabilities; or

(b)
A supervisor shall provide services to
twenty speech and language pathologists; or

(c)
A supervisor shall provide services to
twenty school psychologists.

(d)
An
occupational therapy assistant must be supervised as required by rule
4755-7-01
of the Administrative Code.

(e)
A
physical therapist assistant must be supervised as required by Chapter 4755-27
of the Administrative Code.

(J)
Housing, facilities, materials, and
equipment and supplies for preschool and school-age programs

(1)
Children and service providers must have
a service area that will accommodate the special needs of the children in
attendance and shall be large enough to accommodate the use and storage of
special equipment and teaching materials. Service areas used for special
education classrooms must be equivalent to those used for general education
classrooms.

(2)
Each service
provider must have access to an office or room space suitable for private
consultation or intervention; access to a telephone in an area where
scheduling, parent contacts, and confidential conversations regarding children
can be completed; and adequate office equipment including a locking file
cabinet with a key and supplies.

(3)
Service areas must be equipped with the
appropriate materials, equipment, and facilities necessary to identify children
with disabilities and to implement the child's IEP and meet the educational,
physical, developmental, and learning needs of children within the
area.

(4)
The service areas for
intervention specialists shall be located in the section of the building that
houses regular education children of comparable age.

(5)
The service areas must provide a work
environment that supports service providers and is conducive to children's
learning consistent with rule
3301-35-05
of the Administrative Code. Instructional materials, equipment, and technology
shall be provided to support each child's progress toward meeting educational
objectives as required in paragraph (I)(1) of rule
3301-35-06
of the Administrative Code.

(6)
Evaluation and instructional materials and equipment shall be provided to
enable the child with a disability to progress in the general curriculum or in
the case of preschool, developmentally appropriate activities, and meet both
IEP and performance objectives.

(7)
Children with disabilities shall have the same access to textbooks, educational
materials, and computer technology that is provided to regular education
children.

(8)
Additional materials
and/or technology must be provided to allow children with disabilities access
to the materials used in the general curriculum.

(9)
Equipment that is utilized for children
with disabilities shall be adequately maintained and promptly
repaired.

(K)
Waiver

(1)
If a school district, county board of
developmental disabilities or other educational agency exceeds the
workload
requirements in paragraph (I) of this rule a waiver request must be filed with
the Ohio department of education, office for exceptional children. A school
district, county board of developmental disabilities or other educational
agency may be granted a waiver for individual service provider
limits
or for age-range per instructional period as required by this rule.

(2)
Requests must be submitted in writing to
the Ohio department of education, office for exceptional children or office of
early learning and school readiness. The written request shall include, but not
be limited to, the following:

(a)
Identification of the specific rule for which a waiver is being
requested;

(b)
Specific period of
time for which the waiver is requested; and

(c)
Rationale for the request.

(3)
Each school district, county
board of developmental disabilities or other educational agency shall annually
review the reason for its request as it plans for the delivery of services
through the strategic planning process as required by paragraph (A) of rule
3301-35-03 of
the Administrative Code.

(L)
Prohibition on mandatory medication

(1)
General

School district personnel are prohibited from requiring
parents to obtain a prescription for substances identified under schedules I,
II, III, IV, or V in Section 202(c) of the Controlled Substances Act as amended
and specified in the Anabolic Steroids Control Act of 1990, November 1990,
21 U.S.C. 812(c) for a child as a
condition of attending school, receiving an evaluation under rule
3301-51-06 of the
Administrative Code, or receiving services under this rule.

(2)
Rule of construction

Nothing in paragraph (L)(1) of this rule shall be construed to
create a federal prohibition against teachers and other school personnel
consulting or sharing classroom-based observations with parents or guardians
regarding a child's academic and functional performance, or behavior in the
classroom or school, or regarding the need for evaluation for special education
or related services under rules
3301-51-03 and
3301-51-06 of the
Administrative Code.

(d)
Employment of aides
for particular special education vehicles if deemed necessary by the school
district.

(e)
Alternative pick-up and drop-off locations, such as
the curb, driveway, or front door of the child's home, if determined to be
appropriate based upon the individual needs of the child.

(f)
Other travel that may be arranged by the school
district with no reimbursement from the state.

(4)
School district means city, local,
exempted village, educational service center, community school, STEM
school, boarding school, or county board of developmental disabilities,
for purposes of this rule.

(5)
Children with disabilities in this rule refers to those aged three through
twenty-one.

(6)
Weekend travel on
Saturday or Sunday for residential schools is permitted.

(7)
Department means the Ohio department of
education.

(B)
State
residential schools.

(1)
This paragraph refers
to the Ohio state school for the blind and the Ohio state school for the
deaf.

(2)
Reimbursement for
transportation to and from the school district of residence shall be approved
by the department for eligible children with disabilities placed in the Ohio
state school for the blind and the Ohio state school for the deaf.

(3)
Reimbursement claims for weekend travel
and/or daily travel shall be approved by the department
for eligible children with disabilities placed in the Ohio state school for the
blind and the Ohio state school for the deaf .

(C)
Eligibility.

(1)
Reimbursement for special education
transportation may be approved by the department's office of pupil
transportation for children with disabilities attending a special education
program approved by the department's office for exceptional children, and/or
attending a regular class in a public school.

(2)
School district transportation personnel
shall be consulted in the preparation of the individualized education program
when transportation is required as a related service and when the child's needs
are such that information to ensure the safe transportation and well-being of
the child is necessary to provide such transportation.

(3)
When required by the individualized
education program, transportation will be provided based upon the unique
needs of an individual child.

(4)
A
community school governing board shall provide or arrange transportation free
of any charge for any disabled student enrolled in the school for whom the
student's individualized education program specifies transportation.

(5)
For transportation purposes, a child with
disabilities attending a nonpublic school, placed by parent, guardian, or
others, shall be entitled to transportation the same as any child without
disabilities attending a nonpublic school in accordance with section
3327.01
of the Revised Code.

(D)
General requirements.

(1)
Each school district
shall establish its own reasonable travel time. Travel time is defined as
beginning at the initial pickup of the child and ending with the final arrival
at the school destination.

The school district shall develop its travel time standard,
approved by the individual board of education, and shall consider the following
factors: age of child, condition of disability, geographic size of school
district, location of special education class, traffic patterns, and roadway
conditions.

(2)
Those who
transport eligible children with disabilities must comply with the appropriate
provisions of the rules
3301-83-03 to
3301-83-24 of the Administrative Code.

(3)
Drivers and transportation aides must
have access to appropriate information about the child to the degree that such
information might affect safe transportation and medical wellbeing while being
transported. This information must be accessible in the school transportation
office and is confidential.

(4)
Emergency evacuation and other pertinent safety precautions must be considered
by school districts deciding upon the appropriate transportation services for
children with disabilities.

(5)
All
vehicles used must be authorized vehicles as defined in rule
3301-83-19
of the Administrative Code. A privately owned vehicle utilized to transport a
pupil of the family is not subject to regulation other than that required by
state law.

(A)
Preschool
special education programs and related services operated by school districts,
county boards of
developmental disabilities (county boards of DD), and other
education agencies shall be provided in accordance with this chapter of the
Administrative Code.

(B)
Interagency agreements

Each school district shall develop and annually review
interagency agreements with all partners to ensure a free appropriate public
education (FAPE) is provided to all preschool children
who are eligible for special education services
between the ages of three through five residing in the school district.
At a minimum, agreements with the following partners are required:

(1)
"Head Start" programs within the school
district's service delivery area that provide for:

(a)
Service coordination for preschool
children who are eligible for special education services, three
through five years of age, in a manner consistent with the state interagency
agreement for service coordination with "Head Start"; and

(b)
Transition of children eligible for
special education and related services as a preschool child at age
three.

(2)
The county
agency responsible for the "Help Me Grow" service
delivery system that provides for the transition of children from early
intervention services to preschool special education and related services at
age three in a manner consistent with the state interagency agreement for
service coordination with "Head Start." The agreement must include, but is not
limited to, the following requirements:

(a)
A
process by which strategies are evaluated for effectiveness and appropriate
revisions to the agreement are made;

(b)
A process by which "Help Me Grow" refers
children who are forty-five days or less from their third birthdays and are
suspected of having disabilities. These children must have an evaluation
completed within sixty days of parental consent for evaluation, but an
individualized education program (IEP) is not required by their third
birthdays;

(c)
Shared
responsibilities for evaluating children suspected of having disabilities
referred through "Help Me Grow" at least forty-six days before their third
birthdays but not more than ninety days before their third birthdays;

(d)
Shared responsibilities for child find,
including locating, evaluating, and identifying children with disabilities
birth through age five; and

(e)
Timelines and processes for sharing information about children who may be
transitioning as a preschool child eligible for special education
services from "Help Me Grow" early intervention services to special
education and related services.

(3)
County boards of
DD for
identification, service delivery, and funding to adequately
serve preschool children who are eligible for special
education services three through five years of age.

(C)
Eligibility Each school district of
residence must conduct a full and individual evaluation in accordance with rule
3301-51-06 of the
Administrative Code before the initial provision of special education and
related services to a preschool child eligible for special education
services residing in the district.

(1)
Sufficient information shall be obtained using a variety of information sources
to confirm that a disability exists.

No single source of information, such
as a single measure or score, shall be used to determine if a preschool
child is eligible or not eligible for special education and related services.
Eligibility for special education and related services as a preschool child
shall be determined on the basis of multiple sources of information, including,
but not limited to:

(a)
Information
from part C for children transitioning from early intervention
services;

(b)
Structured
observations in more than one setting and in multiple activities;

(c)
Information provided by the parent or
caregiver; and

(d)
Criterion-referenced and norm-referenced evaluations.

(2)
Based on the variety of sources of
information listed in paragraphs (C)(1)(a) to (C)(1)(d) of this rule, a group
of qualified professionals and the parent of the child shall determine if the
child has a disability and is eligible for special education and related
services as a preschool child .

(3)
The
following developmental areas must be assessed with at least one source of
information listed in paragraphs (C)(1)(a) to (C)(1)(d) of this rule:

(a)
Adaptive behavior;

(b)
Cognition;

(c)
Communication;

(d)
Hearing;

(e)
Vision;

(f)
Sensory/motor function;

(g)
Social-emotional functioning;

(h)
Behavioral functioning.

(4)
A school district must ensure
that sufficient resources are available to conduct evaluations during the
summer months.

(5)
A preschool
child who is eligible for special education services is
a child who has one of the following disabilities, as defined in rule
3301-51-01
of the Administrative Code, based upon the evidence required in paragraphs
(C)(1) to (C)(3) of this rule, and who, by reason thereof, needs special
education and related services:

(a)
Autism;

(b)
Cognitive
disability;

(c)
Deaf-blindness;

(d)
Deafness;

(e)
Emotional
disturbance;

(f)
Hearing
impairment;

(g)
Multiple
disabilities;

(h)
Orthopedic
impairment;

(i)
Other health
impairment;

(j)
Specific learning
impairment;

(k)
Speech or language
impairment;

(l)
Traumatic brain
injury;

(m)
Visual impairment;
or

(n)
Developmental delay, as
defined in paragraph (C)(6) of this rule.

(6)
A school district may choose to use the
term "developmental delay" under the following conditions for children ages
three through five who are experiencing developmental delays and who, by reason
thereof, need special education and related services:

(a)
The applicability of the term shall be
based upon the individual needs of the child as determined by the evaluation
team or the IEP team and other qualified professionals;

(b)
In addition to the assessments required
in paragraph (C)(1) of this rule, results of appropriate diagnostic instruments
and procedures may also be used to help make the determination that a child has
a "developmental delay." A developmental delay may be substantiated by a delay
of two standard deviations below the mean in one or more of the areas of
development or 1.5 standard deviations below the mean in two or more of the
areas of development listed in paragraphs (C)(6)(b)(i) to (C)(6)(b)(v) of this
rule. The results shall not be used as the sole factor in making the
determination that a child has a developmental delay.

"Developmental delay" means a child of three to five years who
is experiencing a delay as determined by an evaluation team, IEP team, and
other qualified professionals in one or more of the following areas of
development:

(i)
Physical
development;

(ii)
Cognitive
development;

(iii)
Communication
development;

(iv)
Social or
emotional development; or

(v)
Adaptive development.

(c)
The term "developmental delay" may be
used only after considering the applicability of the categories provided in
paragraphs (C)(5)(a) to (C)(5)(m) of this rule; and

(d)
The term "developmental delay" may be
used in place of the following disability categories:

(i)
Cognitive disability;

(ii)
Emotional disturbance;

(iii)
Speech or language impairment.

(A child with a developmental delay that requires special
education and related services may be determined in accordance with this rule
to be a child .)

(7)
A
preschool child eligible for special education services shall be at
least age three and not age six.

(a)
School-age services must be considered during the IEP process for a child who
will be age six by December first of the current calendar year.

(b)
A preschool child
eligible for special education services shall have a
grade level of preschool. A child enrolled in kindergarten shall be considered
to be a school-age child and not a preschool child.

(c)
A child younger than three years of age
may meet the age requirement if the child will be three by December first of
the current calendar year and may participate in special education and related
services as a preschool child before December first of the current calendar
year.

(D)
Transition from part C early intervention

A school district is responsible for the following activities
related to transition for a child receiving "Help Me Grow" early intervention
services under part C of the Individuals with Disabilities Education Act, as
amended by the Individuals with Disabilities Education Improvement Act of 2004,
December 2004 (IDEA):

(1)
If invited
by a representative of the part C system, a school district representative
shall attend a conference to discuss transition from early intervention
services to preschool for a child suspected of having a disability. This
conference may occur up to nine months before a child's third birthday. The
school district shall document participation in the conference.

(2)
At the parent's request, the school
district shall invite the part C service coordinator to the initial IEP
meeting.

(3)
If there is a
suspected disability and the child is eligible for special education and
related services as a preschool child, the school district shall work with the
family to ensure an IEP is in place and implemented by the child's third
birthday. The dates for the initiation and duration of services shall be
determined by the evaluation team or the IEP team and other qualified
professionals.

(4)
A school
district must consider extended school year services as part of the IEP process
for children transitioning from part C services. There
is no requirement that a child must have previous school experience to receive
extended schol year services. Based upon data available from the part C
system, the evaluation team or the IEP team and other qualified professionals
shall determine if extended school year services are required as outlined in
paragraph (G) of rule
3301-51-02
of the Administrative Code.

(5)
A
school district determined by the Ohio department of education to be
noncompliant with the transition timeline to have an IEP in place by an
eligible child's third birthday:

(a)
Shall
develop a corrective action plan in addition to the interagency agreement. The
corrective action plan must include the signature of a representative of the
agency responsible for "Help Me Grow" part C services;
and

(b)
May have funds reduced or
terminated by the Ohio department of education.

(E)
Measuring child progress

A school district shall measure a child's progress using
multiple sources of information. Information must be obtained across multiple
settings, representing a variety of interactions and input from parents and
staff involved with the child.

(1)
Information shall be analyzed to evaluate the conditions under which desired
behaviors occur and if the desired behavior is not demonstrated, an analysis of
contributing factors shall be conducted, and changes in the environment,
curriculum, and instruction shall be considered.

(2)
Information on a child's progress shall
be reported in the manner prescribed by the Ohio department of
education.

(F)
Center-based and itinerant teacher services

A continuum of service delivery options that includes the
options of center-based or itinerant teacher services shall be considered when
determining the least restrictive environment.

(1)
Adapted physical education (APE) or
related services, as appropriate, shall be considered in conjunction with
center-based or itinerant teacher services. When determining services, the
school district shall consider the following factors:

(a)
The child's ability to participate and
progress in the general early childhood curriculum; and

(b)
The child's socialization needs;
and

(c)
The child's educational and
developmental progress.

(2)
Itinerant services may be delivered in
the home, in a preschool program administered by a public school, or in a
community-based preschool or child care program that meets the requirements of
Chapter 5104. of the Revised Code.

(3)
Center-based classroom services may be
delivered in an integrated facility, such as team teaching within a
community-based program, or a separate facility.

(4)
Center-based options must include
opportunities for services in settings that are considered to be early
childhood settings as the term is used by the United States department of
education.

(5)
A "change of
placement" is defined as a change in the service delivery option (center-based
or itinerant teacher).

(6)
Center-based environments meeting the federal definition of an early childhood
setting shall be considered during the IEP meeting.

(7)
Up to eight age-eligible, nondisabled
peers may be enrolled in a preschool special education classroom. In such
cases, no more than sixteen children shall be present at any one time. The
maximum number of children enrolled in any class shall be appropriate for the
severity of disabilities and needs of the children enrolled.

(G)
Preschool services

Special education and related services shall be provided in
accordance with the following:

(1)
Unless otherwise specified in the IEP, preschool children
eligible for special education are considered to be
receiving full-day center-based services if twenty or more hours of
center-based services are provided per week;

(2)
Unless otherwise specified in the IEP, a
minimum of four hours of services per month shall be provided for each child by
an itinerant teacher and a minimum of ten hours of services per week shall be
provided for each child served by a center-based teacher:

(a)
Preschool children
eligible for special education are considered to be
.50 full-time equivalency (FTE) if ten hours of center-based preschool special
education services are provided per week.

(b)
Preschool children
eligible for special education receiving itinerant
teacher services are considered to be .50 FTE.

(3)
Services may be provided directly to the
child or provided to the child using a consultative model. Consultative
services may include all staff involved with the preschool child
who is eligible for special education
services;

(4)
All staff
involved in service delivery shall contribute to planning instruction and
monitoring progress;

(5)
Service
delivery may be done through a team teaching or transdisciplinary model in
conjunction with "Head Start", public preschools, community preschools, or
child care; and

(6)
A school year
consistent with section
3313.48
of the Revised Code shall be provided to preschool children
who are eligible for special education.

(H)
Preschool service provider
ratios Preschool service providers will provide direct or consultative
services, including sufficient supervision, during all activities in accordance
with the following ratios:

(1)
Center-based
preschool special education classrooms shall serve no more than eight preschool
children with disabilities in any one class session. If a teacher is
responsible for two half-day class sessions, no more than sixteen children
shall be served per teacher;

(2)
A
full-time staff member shall be provided when there are six full-day or twelve
half-day preschool children eligible for special education
enrolled in a center-based program;

(3)
A teacher providing both center-based and
itinerant services shall serve no more than twenty children, and each child
will be considered .50 FTE;

(4)
An
itinerant teacher shall serve no more than twenty children, and each child will
be considered .50 FTE;

(5)
Staff
ratios of one teacher for six children shall be maintained at all times for a
center-based teacher, and a second adult shall be present when there are seven
or more children, including nondisabled peers, enrolled in a class session;
and

(6)
Sufficient staff shall be
available at all times when preschool children eligible for special
education are enrolled so that in emergency situations when help must be
summoned, ratios shall be maintained, and children shall be sufficiently
supervised during all activities;

(7)
APE and related services shall be counted
as one FTE based upon the following number of eligible preschool children
served:

(a)
An APE staff member at one FTE shall have
a caseload of no more than one hundred eligible preschool children
;

(b)
A preschool attendant at one FTE shall
have a caseload of no more than three eligible preschool children
;

(c)
An audiologist at one FTE shall have a
caseload of no more than seventy-five eligible preschool children with hearing
impairments;

(d)
An occupational therapist at one FTE
shall have a caseload of no more than forty eligible preschool children
;

(e)
An orientation and mobility specialist at
one FTE shall have a caseload of no more than forty eligible preschool children
with visual impairments;

(f)
A physical therapist at one FTE shall
have a caseload of no more than forty eligible preschool children
;

(g)
A school psychologist at one FTE shall
have a caseload of no more than seventy-five eligible preschool children
or on the basis of one
thousand children, ages three through five, an average daily membership as
authorized by section
3317.15
of the Revised Code; and

(h)
A
speech and language pathologist at one FTE shall have a caseload of no more
than fifty eligible preschool children .

(8)
Staff serving children with disabilities
ages three through five and six through twenty-one will have FTE apportioned on
the basis of the number of children served in each age category and the
percentages totaling one hundred per cent.

(9)
The number of hours for FTE shall not
exceed the total number of days per year that the preschool special education
program is legally in session.

(1)
Personnel providing
preschool services shall hold one of the following licenses in accordance with
Chapter 3301-24 of the Administrative Code:

(a)
A valid Ohio special education teaching
certificate or license with an endorsement for preschool special needs or
pre-kindergarten;

(b)
A valid
pre-kindergarten teaching certificate with an
endorsement for preschool special needs;

(c)
A valid early childhood intervention
specialist license;

(d)
A valid
intervention specialist license in accordance with paragraph
(A)(5)(b) or (A)(5)(c) of rule
3301-24-05 of the
Administrative Code if the only children served are preschool children
eligible for special education who are at least five
years of age;

(e)
A valid
intervention specialist license in accordance with paragraph
(A)(5)(d) of rule
3301-24-05 of the
Administrative Code if the children served are preschool children with visual
impairments; or

(f)
A valid
intervention specialist license in accordance with paragraph
(A)(5)(e) of rule
3301-24-05 of the
Administrative Code if the children served are preschool children with hearing
impairments.

(2)
Preschool special education teachers who are assigned to categorical classrooms
for children with visual or hearing impairments must have the special education
certificate required for the categorical area.

(3)
Preschool special education teachers
whose caseloads include children with visual and/or hearing impairments shall
be provided assistance from a teacher or other specialist licensed in the area
for that sensory impairment.

(J)
Preschool supervisory services

(1)
A preschool special education
supervisor's services shall include but are not limited to:

(a)
Providing assistance to early childhood
personnel in the provision of developmentally and exceptionality appropriate
practices for preschool children who are eligible for special
education services;

(b)
Facilitating the provision of comprehensive early childhood delivery systems
for young children with disabilities including the integration of:

(i)
Education;

(ii)
Health;

(iii)
Social services; and

(iv)
Parent education components.

(c)
Participating in the
development and evaluation of professional development plans and induction
programs that apply to early childhood personnel and as outlined in proposed
teacher education and licensure standards;

(d)
Assisting with the implementation and
evaluation of proposed standards that apply to early childhood
programs;

(e)
Collaborating with
"Head Start" in activities as outlined in the interagency agreement;

(f)
Collaborating with local family and
children first councils in activities that apply to both early intervention and
preschool programs as outlined in the interagency agreement;

(g)
Collaborating with the regional state
support team in the provision of training and technical assistance responsive
to the needs of early learning personnel within the assigned service
region;

(h)
Collaborating with the
Ohio department of education, office of early learning and school readiness, as
appropriate; and

(i)
Providing
leadership to early childhood educators within the assigned service
region.

(2)
The early
childhood supervisor shall meet the following minimum qualifications:

(a)
Have at least three years
of experience teaching young children birth
through age eight and one of the following licenses or certificates:

(i)
A valid professional early childhood
intervention specialist license (ECIS);

(ii)
A valid professional early childhood
education teacher license (ECE); or

(iii)
A valid teaching certificate/license
with early education of the handicapped or preschool special needs as a
teaching area; or

(b)
Have at least three years experience teaching special education and one of the
following licenses or certificates:

(i)
A
valid administrative specialist license;

(ii)
A valid supervisor
certificate/license;

(iii)
A valid
principal certificate/license; or

(iv)
A valid superintendent
certificate/license.

(K)
Preschool transportation

Transportation shall be listed as a related service on a
preschooler's IEP if the IEP team determines that transportation is required
for the child to access and benefit from special
education.

(1)
"Gifted" means students who perform or
show potential for performing at remarkably high levels of accomplishment when
compared to others of their age, experience, or environment and who are
identified under division (A), (B), (C), or (D) of section
3324.03 of the Revised
Code.

(2)
"School district" means a
city, local, or exempted village school district and does not include a joint
vocational school district.

(3)
"Specific academic ability field" means one or more of the following areas of
instruction:

(a)
Mathematics;

(b)
Science;

(c)
Reading, writing, or a combination of
these skills; and/or

(d)
Social
studies.

(4)
"Trained
individual" means a person who by training or experience is qualified to
perform the prescribed activity, e.g., educator, private teacher, higher
education faculty member, working professional in the field of visual or
performing arts or a person trained to administer assessments/checklists to
identify gifted ability in creative, visual or performing arts.

All minimum standards for elementary and secondary schools
shall be followed for students who are gifted.

(C)
Identification

(1)
Definition

The board of education of each district shall identify students
who are gifted and are enrolled in that district in grades kindergarten through
twelve as follows:

(a)
A student shall
be identified as exhibiting "superior cognitive ability" if the student did
either of the following within the preceding twenty-four months:

(i)
Scored two standard deviations above the
mean, minus the standard error of measurement, on an approved individual
standardized intelligence test administered by a licensed or certified school
psychologist or licensed psychologist; or

(ii)
Accomplished any one of the following:

(a)
Scored at least two standard deviations
above the mean, minus the standard error of measurement, on an approved
standardized group intelligence test;

(b)
Performed at or above the ninety-fifth
percentile on an approved individual or group standardized basic or composite
battery of a nationally normed achievement test; or

(c)
Attained an approved score on one or more
above grade-level standardized, nationally normed approved tests.

(b)
A student shall be
identified as exhibiting "specific academic ability" superior to that of
students of similar age in a specific academic ability field, if, within the
preceding twenty-four months the student performed at or above the ninety-fifth
percentile at the national level on an approved individual or group
standardized achievement test of specific academic ability in that field. A
student may be identified as gifted in more than one specific academic ability
field.

(c)
A student shall be
identified as exhibiting "creative thinking ability" superior to a student of a
similar age, if within the previous twenty-four months, the student scored one
standard deviation above the mean, minus the standard error of measurement, on
an approved individual or group intelligence test and also did either of the
following:

(i)
Attained a sufficient score, as
established by the department of education, on an approved individual or group
test of creative ability; or

(ii)
Exhibited sufficient performance, as established by the department of
education, on an approved checklist by a trained individual of creative
behaviors.

(d)
A student
shall be identified as exhibiting "visual or performing arts ability" superior
to that of students of similar age if the student has done both of the
following:

(i)
Demonstrated to a trained
individual through a display of work, an audition, or other performance or
exhibition, superior ability in a visual or performing arts area; and

(ii)
Exhibited to a trained individual
sufficient performance, as established by the department of education, on an
approved checklist of behaviors related to a specific arts area.

(e)
After any initial gifted
identification made in conformance with this rule, a student shall remain
identified regardless of subsequent testing or classroom performance.

(2)
Testing/assessment

(a)
A list of the approved instruments and
checklists will be established and published by the department of
education.

(b)
The district shall
select instruments from the list established by the department for use in the
identification of students who are gifted.

(c)
The district shall ensure that assessment
instruments:

(i)
Are administered by a trained
individual in conformance with the instructions provided by their
publisher;

(ii)
Have been validated
for the specific purpose and populations for which they are used and measure
the specific area(s) of gifted ability;

(iii)
Allow for appropriate screening and
identification of minority or disadvantaged students, students with
disabilities, and English learners;

(iv)
Are provided and administered in the
student's native language or other mode of communication if English is a
barrier to the student's performance or if requested by the parent;

(v)
Are provided and administered using the
accommodations in a student's "Individualized Education Program" or "504 Plan."
If these accommodations are not consistent with a test's allowable
accommodations, a comparable approved assessment instrument shall be used;
and

(vi)
Are selected and
administered so as to best ensure that when a test is administered to a student
with a disability or impaired sensory, manual or speaking skills, the test
results accurately reflect the student's aptitude or achievement level or
whatever other factors the test purports to measure, rather than reflecting the
student's disability or impaired sensory, manual or speaking skills.

(3)
District
identification plan

The board of education of each district shall adopt a plan as
specified in section 3324.04 of the Revised Code for
identifying students who are gifted:

(a)
The district identification plan, in
accordance with department of education guidelines, shall be submitted to the
department of education for approval immediately following district board of
education approval.

(b)
The
department of education shall approve the plan within sixty days if it contains
all of the following:

(i)
A description of
the assessment instruments from the list approved by the department that the
district will use to screen and identify students who are gifted;

(ii)
The provision of at least two whole
grade screening opportunities as follows:

(a)
For (I) superior cognitive ability, (II) specific academic ability in the areas
of (a) mathematics and (b) reading, writing or a combination of these skills,
and (III) creative thinking ability for all students once prior to the end of
grade two.

(b)
For (I) superior
cognitive ability, (II) specific academic ability in the areas of (a)
mathematics and (b) reading, writing or a combination of these skills, and
(III) creative thinking ability for all students once after the completion of
grade two but prior to the end of grade six.

(iii)
Acceptable scheduling procedures for
screening and for administering assessment instruments for identifying students
who are gifted. These procedures shall provide:

(a)
In the case of students who have
requested assessment or who have been recommended for assessment by teachers,
parents, or other students, at least two opportunities a year for assessment
regardless of the grade levels where gifted services are offered. A student's
initial assessment shall be completed within ninety days of referral;

(b)
Assurance of inclusion in screening and
assessment procedures for minority and disadvantaged students, students with
disabilities, and English learners; and

(c)
Assurance that any student transferring
into the district will be assessed within ninety days of the transfer at the
request of a parent;

(iv)
Procedures for notification of parents within thirty days of the district's
receipt of a student's results on any screening procedure or assessment
instrument; and

(v)
The provision
of an opportunity for parents to appeal any decision about the results of any
screening procedure or assessment, the scheduling of students for assessment,
or the placement of a student in any program or for receipt of
services.

(c)
The
district shall accept assessment results from other districts or from a trained
individual outside the district, as equivalent to district testing as set forth
in paragraph (C) of this rule (identification) and may not exclude a student
from service options due to reassessment, test scores from other districts or
test scores from trained personnel outside the district if the student meets
the criteria specified in paragraph (C) of this rule (identification).
Districts shall not alter eligibility through any consideration or computation
other than as set forth in paragraph (C) of this rule
(identification).

(d)
The
district's plan may provide for the district to contract with any qualified
public or private service provider to provide screening or assessment services
under the plan.

(e)
The district
shall work with the department of education to amend the plan and ensure the
plan meets approval, and if the district changes the plan such changes shall be
submitted to the department of education immediately following district board
of education approval.

(4)
District policy

The board of education of each district shall adopt a statement
of its policy for the screening and identification of students who are gifted
and shall distribute the policy statement to parents.

(a)
The policy statement shall specify:

(i)
The criteria and methods the district
uses to screen students and to select students for further assessment who
perform or show potential for performing at remarkably high levels of
accomplishment in each of the gifted areas specified in this rule;

(ii)
The sources of assessment data the
district uses to select students for further testing and an explanation for
parents of the multiple assessment instruments required to identify students
who are gifted under section
3324.03 of the Revised
Code;

(iii)
An explanation for
parents of the method the district uses to ensure equal access to screening and
further assessment by all district students, including minority or
disadvantaged students, students with disabilities, and English
learners;

(iv)
Provisions to ensure
equal opportunity for all district students identified as gifted to receive
services offered by the district;

(v)
Provisions for students to withdraw from
gifted programs and services, for reassessment of students, and for assessment
of students transferring into the district;

(vi)
A detailed list of the services likely
to be provided to a student, based on the nature of a student's identification,
and of all gifted services that are currently available within the school
district including the criteria for receiving those services (paragraph (D)(7)
of rule 3301-51-15 of the Administrative Code); and

(vii)
Methods for resolving disagreements
between parents and the district concerning identification and placement
decisions.

(b)
A copy of
the district's policy adopted under this section shall accompany the district's
plan submitted to the department of education under section
3324.04 of the Revised
Code.

(D)
Provision of services

(1)
Gifted services
must include instruction that is differentiated from the standard curriculum
for that course in depth, breadth, complexity, pace, and/or where content is
above-grade level.

(2)
Services
shall occur during the typical instructional day with flexibility allowed for
the scheduling of district-approved internships or mentorships and higher
education coursework, including credit flexibility.

(3)
Instructional time, class size, and
caseload ratios for all service settings shall be equivalent to districtwide
instructional time, class size, and caseload ratios for the corresponding
subject, grade level, and setting under Chapter 3301-35 of the Administrative
Code with exceptions as noted per paragraph (D)(4) of this rule.

(4)
A continuum of services provided by each
district board of education, where content is delivered per paragraph (D)(1) of
this rule, may include but is not limited to such options as the following:

(a)
A full-time self-contained classroom
where the gifted intervention specialist is the teacher of record and all
students are identified as gifted. A maximum of twenty students at one time is
permitted in this setting. The department of education, office for exceptional
children, shall establish policies and procedures for granting temporary
waivers related to this setting;

(b)
A single subject self-contained course
where the gifted intervention specialist is the teacher of record and all
students are identified as gifted;

(c)
Services through co-teaching in a cluster
grouping setting where a group of students who are gifted is deliberately
placed together in a classroom where one teacher is a gifted intervention
specialist with a maximum of twenty students who are gifted at any one time and
a maximum caseload of eighty students who are gifted. The teachers shall be
provided with regularly scheduled collaborative planning time. Each student
served in this setting shall be provided instruction for no less than one core
content class period a day or an average of fifteen per cent of the school
week. The department of education, office for exceptional children, shall
establish policies and procedures for granting temporary waivers related to
this setting;

(d)
A resource
room/pull-out where the gifted intervention specialist has a maximum of twenty
students who are gifted at any one time and a maximum caseload of eighty
students who are gifted. Each student served in this setting shall be provided
instruction for no less than one core content class period a day or an average
of fifteen per cent of the school week. The department of education, office for
exceptional children, shall establish policies and procedures for granting
temporary waivers related to this setting;

(e)
Cluster grouping where a small group of
students who are gifted is deliberately placed together in a classroom. Each
student served in this setting shall be provided instruction for no less than
one core content class period a day or an average of fifteen per cent of the
school week;

(f)
An honors
course;

(g)
An international
baccalaureate course;

(h)
An
advanced placement course;

(i)
Services through a trained arts instructor;

(j)
Grade acceleration, early entrance to
kindergarten or first grade, subject acceleration, or early graduation from
high school per district acceleration policy approved under section
3324.10 of the Revised
Code;

(k)
Dual enrollment
opportunities including but not limited to college credit plus;

(l)
In internships and mentorships;
and/or

(m)
Educational options
including credit flexibility, advanced online courses and programs and other
options as defined in rules
3301-35-01
and
3301-35-06
of the Administrative Code.

(5)
Services for students shall be consistent
with their area(s) of identification and shall be differentiated to meet their
needs.

(6)
The district shall only
indicate to parents or report to the department of education that a student is
receiving gifted education services when services are provided in conformance
with this rule.

(7)
Placement
procedures for district services shall be in conformance with the district's
written criteria for determining eligibility for placement in those services.

(a)
Written criteria for determining
eligibility for placement in a gifted service shall be provided to any parent,
district educator, or the department of education upon request.

(b)
Written criteria provided by the district
shall include an explanation of the methods used to ensure equal access to each
gifted service for all eligible district students, including minority or
disadvantaged students, students with disabilities and English learners. This
written criteria shall not unduly restrict access to services.

(c)
Subjective criteria such as grades and
teacher recommendations shall not be used to exclude a student from
service.

(d)
All district students
who meet the written criteria for a gifted service shall be provided an equal
opportunity to receive that service.

(8)
Personnel shall meet the qualifications
listed in this paragraph and shall provide services that are consistent with
this rule.

(a)
A gifted intervention
specialist shall:

(i)
Hold licensure or
endorsement in gifted education; and

(ii)
Participate in ongoing professional
development related to gifted education as documented on the "Individual
Professional Development Plan" (IPDP) or other methods as determined by the
department.

(b)
A general
education teacher who is designated as a provider of gifted services shall:

(i)
Receive specialized training in gifted
education in order to meet the
following competencies:

(a)
The ability to
differentiate instruction based on a student's readiness, knowledge and skill
level, including using accelerated content, complexity, depth challenge,
creativity and abstractness;

(b)
The ability to select, adapt, or create a variety of differentiated curricula
that incorporate advanced, conceptually challenging, in-depth, distinctive and
complex content;

(c)
The ability to
provide an extension or replacement of the general education curricula, to
modify the learning process through strategies such as curriculum compacting,
and to select alternative assignments and projects based on individual student
needs

(d)
The ability to understand
the social and emotional needs of students who are gifted and to address the
impact of those needs on student learning;

(e)
The ability to recognize and respond to
characteristics and needs of students from traditionally underrepresented
populations who are gifted and create safe and culturally responsive learning
environments;

(f)
The ability to
use data from a variety of sources to measure and monitor the growth of
students who are gifted;

(g)
The
ability to select, use, and interpret technically sound formal and informal
assessments for the purpose of academic decision making; and

(h)
The ability to participate in the
development of the "Written Education Plan."

(ii)
Earn clock hours
of professional development related to gifted education as specified:

(a)
For general
education teachers who do not have certified advanced placement or
international baccalaureate training as outlined in paragraph (D)(8)(b)(ii)(b)
of this rule, at least fifteen clock hours of professional development in
gifted education during each year over four years with additional clock hours
each year thereafter as determined by the district. Professional development
must address the competencies listed in paragraphs (D)(8)(b)(i)(a) to
(D)(8)(b)(i)(h) of this rule. During the first year of training, the teacher is
considered a gifted service provider unless that teacher fails to meet the
fifteen clock hours of gifted professional development by the end of the school
year. The teacher remains a gifted service provider by meeting the minimum
clock hours in each subsequent year.

(b)
For general
education teachers who are certified advanced placement or international
baccalaureate teachers who have earned at least twenty-four hours of certified
advanced placement or international baccalaureate training within the past five
years, at least seven and one-half clock hours of professional development in
gifted education during each year over four years with additional clock hours
each year thereafter as determined by the district. Professional development
must address the competencies listed in paragraphs (D)(8)(b)(i)(a),
(D)(8)(b)(i)(a)(b), (D)(8)(b)(i)(a)(d), (D)(8)(b)(i)(a)(e), and
(D)(8)(b)(i)(a)(h) of this rule. During the first year of training, the teacher
is considered a gifted service provider unless that teacher fails to meet the
seven and one-half clock hours of gifted professional development by the end of
the school year. The teacher remains a gifted service provider by meeting the
minimum clock hours in each subsequent year.

(c)
For general
education teachers who are designated providers of gifted education services,
any clock hours earned in excess of the minimum in a particular year per
paragraphs (D)(8)(b)(ii)(a) and (D)(8)(b)(ii)(b) of this rule may be counted
toward the requirement in any subsequent year.

(d)
For general
education teachers who are designated providers of gifted education services as
of or after July 1, 2017, count any documented clock hours of qualifying
professional development in gifted education earned in the preceding
twenty-four months prior to the designation toward this
requirement.

(iii)
Participate in ongoing professional development related
to gifted education as specified in paragraphs (D)(8)(b)(ii)(a) and
(D)(8)(b)(ii)(b) of this rule from an educator who holds licensure or
endorsement in gifted education, a graduate degree in gifted education, or is a
state or national presenter in gifted education;

(iv)
Document ongoing
professional development and specialized training in gifted education on the
"Individual Professional Development Plan" (IPDP), or by other methods as
determined by the department and monitored by the district; and

(v)
Receive ongoing support in curriculum development and instruction from an
educator who holds licensure or endorsement in gifted
education.

(c)
A
Coordinator of gifted education services shall:

(i)
Demonstrate evidence of at least three
years successful teaching experience;

(ii)
Hold Ohio administrative specialist
license, if the coordinator is to supervise teachers;

(iii)
Hold licensure or endorsement in gifted
education; and

(iv)
Participate in
ongoing professional development related to gifted education as documented on
the "Individual Professional Development Plan" (IPDP) or other methods as
determined by the department.

(9)
Coordinators of gifted education shall
provide the following services for school districts:

(a)
Assist in the identification of students
who are gifted;

(b)
Assist in the
placement of students who are gifted in appropriate educational services and
settings;

(c)
Assist school
personnel in the design of gifted education services;

(d)
Consult with school personnel regarding
gifted education issues in district strategic planning processes and the
development of school improvement plans;

(e)
Assist school personnel in the on-going
evaluation of the effectiveness of gifted education services, including input
from parents of students who are gifted;

(f)
Consult with school personnel about ways
to develop and adapt curriculum, materials, and teaching strategies;
and

(g)
Assist school personnel in
ensuring that documents required in this rule regarding gifted identification
procedures and written criteria for placement in gifted services are accurate
and accessible to parents and other stakeholders.

(10)
All personnel providing gifted services
shall be provided with appropriate space and sufficient time for designing
their work, evaluating student progress, conferencing, and planning.

Gifted services shall be guided by a WEP. The district shall
provide parents with periodic reports regarding the student's progress toward
meeting goals and the effectiveness of the services provided in accordance with
the WEP.

(1)
The WEP shall be
developed in collaboration with an educator who holds licensure or endorsement
in gifted education. The WEP shall:

(a)
Provide a description of the services to be provided including:

(i)
Goals for the student in each service
specified including, but not limited to, measurable academic goals. Goals may
also include curricular, guidance and instructional practices which support the
student's social and emotional needs;

(iii)
Methods and schedule for reporting
progress to students and parents;

(iv)
Staff members responsible for ensuring
that specified services are delivered;

(v)
Policies regarding the waiver of
assignments and the scheduling of tests missed while participating in any
gifted services provided outside the general education classroom; and

(vi)
Include a date by which the WEP will be
annually reviewed for possible revision.

(b)
Parents, the collaborating educator, and
all educators responsible for providing gifted education services to the
student, including teachers providing differentiated instruction in general
education settings, shall be provided a copy of the WEP.

(c)
Districts shall make a reasonable attempt
in writing, electronic or otherwise, at the commencement of services and each
year thereafter in which a student receives gifted services, to obtain a parent
or guardian signature on the WEP. Students shall not be denied services due to
the lack of a parent or guardian signature.

(2)
For each student identified as gifted who
is not provided gifted services per this rule, districts shall develop and
disseminate to parents or guardians a no services letter which clearly
communicates that the student is not receiving gifted services. The letter may
include a list of enrichment opportunities provided to the student by the
district.

(F)
Funding

(1)
Districts shall report the amount of
funds spent on gifted education using guidelines prescribed by the department
of education.

(2)
The department,
no later than October thirtieth each year, shall publish on its website
district expenditures for gifted education.

(3)
In an allocation process determined by
the department, where educational service centers receive gifted unit funding,
units must be allocated with appropriately licensed and qualified gifted staff
as follows:

(a)
Gifted coordinators must have
gifted licensure and, if assigned to supervise staff, must have administrative
licensure;

(b)
Gifted intervention
specialists must have gifted licensure; and

(c)
Units for gifted intervention specialists
may be allocated where qualified gifted coordinator services are
available.

(G)
Accountability

(1)
Each year districts shall
submit data to the department of education specifying:

(a)
The number of students in each of grades
kindergarten through twelve screened, the number assessed, and the number
identified as gifted in each category specified in section
3324.03 of the Revised
Code.

(b)
The number of students
receiving gifted services in conformance with this rule.

(2)
Each district shall participate in an
audit based on risk assessment criteria as determined by the department.
Districts may be selected for audit more frequently based on complaints or
suspicion of non-compliance. Audits will be differentiated and may include
onsite reviews, desk reviews and/or self-reviews of gifted education data,
policies, practices and procedures. Results of the audit may require corrective
action and/or the implementation of a district improvement plan.

(a)
Districts shall be provided an
opportunity to validate the data used for the audit and to respond to the audit
findings.

(b)
The department of
education shall provide technical assistance to any district found in
noncompliance with this rule.

(3)
The department of education may reduce
funds received by the district under Chapter 3317. of the Revised Code by any
amount if the district board of education continues to be
noncompliant.

(H)
Innovative gifted service proposals

The department shall establish a process and criteria for
submission and review of proposals related to the innovative design and
delivery of services for students who are gifted. Innovative gifted service
proposals may be approved for not more than 5 years of implementation.

(I)
Gifted advisory council

The superintendent of public instruction shall establish a
gifted advisory council. The council shall:

(1)
Represent a variety of stakeholders from
diverse regions of the state, including parents, general and gifted educators,
administrators, and others as determined by the superintendent;

(2)
Assist in the development and updating of
a department-approved plan for gifted education in Ohio;

(3)
Advise on policy
recommendations;

(4)
Serve as
advisors in establishing criteria for review of proposals to implement
innovative gifted services; and

(5)
Establish criteria for identifying and recognizing schools, districts, and
other educational providers that demonstrate an exemplary ability to serve
students who are gifted.

(a)
All children referred for placement at
the Ohio school for the deaf or the Ohio state school for the blind will be
given an initial evaluation by the school district of residence, which shall be
conducted in accordance with rules
3301-51-05
and
3301-51-06 of the
Administrative Code, and may include, but is not limited to, the following:

(i)
For deaf/hard of hearing students: the
communication needs of students; the student's and family's preferred mode of
communication; the student's linguistic needs; the severity of the hearing loss
and potential use of residual hearing; the student's academic level; the
social, emotional, and cultural needs of the student; opportunities for
deaf/hard of hearing peer interactions and communication; consideration of the
curriculum content and method of delivery; the student's need for direct
instruction and interaction with teachers; opportunities for participation in
extra-curricular activities; and access to specialists who are familiar with
the needs of deaf/hard of hearing students.

(ii)
For students with blindness or visual
impairment: interpretation of medical vision examination information from an
optometrist or ophthalmologist; functional vision, visual efficiency, low
vision aids assessment; tactile, auditory, and other sensory skills; assessment
of use of learning media (braille and print); cognitive development and
intellectual functioning; academic skills; gross and fine motor development;
orientation and mobility skills; career and vocational skills; daily living,
recreation, and leisure skills; technology and skills for student access to the
curriculum; environmental adaptations and accommodations necessary to meet the
student's learning needs.

(b)
The superintendent of the residential
school may request an evaluation by the residential school's evaluation center
if the information provided by the school district of residence does not
satisfy the criteria needed for placement consideration. Evaluation by the
residential school's evaluation center shall also be conducted in accordance
with rules
3301-51-05
and
3301-51-06 of the
Administrative Code.

(2)
Placement -

(a)
The superintendent of the
school district of residence shall convene an individualized education program
(IEP) team meeting to review the evaluation's findings, child's needs, and to
determine placement.

(b)
The
placement decision shall be based on the eligibility and free appropriate
public education (FAPE) requirements contained in the operating standards for
Ohio educational agencies serving children with disabilities, which are
available on the Ohio department of education's website ( education.ohio.gov) along with the following
standards:

(i)
That there is adequate space
in the facility and/or program;

(ii)
That the child meets the federal
definition of a hearing impairment (including deafness), a visual impairment
(including blindness) or the child meets the definition of deaf-blindness as
defined in the federal register at
34 C.F.R. 300.9 (December 2008); and

(iii)
That the child has the potential for
physical, emotional, and social maturity to adjust to the discipline of formal
instruction and group living.

(3)
Appeal procedure - If the residential
school superintendent objects to the placement decision by the referring school
district superintendent and the IEP team, then the following procedures shall
be followed:

(a)
The residential school
superintendent shall make a written objection to the superintendent of the
school district of residence stating the specific reasons for objecting to the
placement. A copy of the written objection shall be provided to the parents of
the child. The superintendent of the school district of residence shall conduct
a review, hold a hearing, and shall notify in writing all parties involved,
including the parents, of his/her decision within twenty days.

(b)
If the superintendent of the school
district of residence and the residential school superintendent cannot resolve
their disagreement over placement of a child, then a representative of the Ohio
department of education will conduct an administrative review of the facts of
the case, may hold an informal hearing with those involved, issue a placement
decision within twenty days of the conference and communicate that decision in
writing to the superintendent of the school district of residence, the
residential school superintendent, and the parents of the child.

(c)
The superintendent of the school district
of residence or the residential school superintendent may present a formal
objection in writing within twenty days to the board of education and the
superintendent of the school district of residence and request an impartial due
process hearing. A copy of the written objection shall be provided to the
parents of the child.

(d)
An
impartial hearing officer, appointed by the Ohio department of education, shall
conduct a hearing to review the placement decision. The parents shall be
provided with prior written notice regarding the hearing. The decision of the
hearing officer shall be final, except that any party to the hearing may appeal
the finding or decision in accordance with division (H) of section
3323.05
of the Revised Code.

(i)
The educational
status of the child will not be changed unless the state or the child's
district of residence and the parents or guardian of the child agree otherwise;
or, if applying for initial admission to a public school, shall, with the
consent of the parents or guardian, be placed in a public school program until
all such proceedings have been completed.

(ii)
Cost incurred in the impartial due
process hearing procedure will be divided equally between the referring school
district and the receiving state residential school pursuant to section
3323.04
of the Revised Code.

(e)
Nothing in this rule shall preclude a parent or guardian from exercising rights
available to them in the operating standards for Ohio educational agencies
serving children with disabilities.

(B)
Dismissal program

(1)
If, in the judgment of the residential
school superintendent and the IEP team, the program is not appropriate for the
child, the residential school superintendent shall inform the superintendent of
the school district of residence and the parent in writing of his intention to
dismiss the child from the residential school in accordance with the authority
contained in section
3325.03
of the Revised Code. Such written notice shall state the reasons supporting the
residential school superintendent's intention to dismiss the child.

(2)
The residential school superintendent may
request an evaluation. Parental consent is required in accordance with
paragraph (C)(3) of rule
3301-51-05
of the Administrative Code. Results of the evaluation will be provided to the
residential school superintendent, the IEP team, the superintendent of the
school district of residence, and the parents.

(3)
If the superintendent of the school
district of residence or the parent of the child objects to the intention to
dismiss the child, the steps in paragraphs (A)(3)(a) to (A)(3)(d) of this rule
regarding the appeal procedure identified in paragraph (A)(3) of this rule
shall be followed. The educational status of the child shall not change until
all appeal proceedings are completed.

(1)
Suspension,
expulsion or temporary removal may result from one or more of the following:
damaging or attempting to damage property on or off campus; disrupting school
or other campus and dormitory activities; any acts of violence, force,
coercion, extortion or threat; assault or attempted assault on other pupils or
employees; possessing, using, transmitting or concealing any weapon, alcohol or
drug; arson or attempted arson; theft; reckless operation of a vehicle on or
near campus; truancy; or any other personal and/or social behavior deemed
unacceptable by the superintendent or principal.

(2)
All suspensions and expulsions will be
formalized by the residential school superintendent and shall be in accordance
with the procedures identified below:

(a)
Suspension shall not exceed ten school days in a given school year. Prior to
suspension, the child shall be given:

(i)
Written notice of and reasons for the intended suspension.

(ii)
An opportunity to appear at an informal
hearing before the residential school superintendent or his designee and
challenge the reasons for the intended suspension.

(b)
Prior to expulsion the child and his
parent, guardian or custodian shall be given:

(i)
Written notice of and reasons for the
intention to expel the child.

(ii)
Provide them an opportunity to appear before the residential school
superintendent or his designee to challenge the reasons. The time and place of
the hearing shall be designated in the notice.

(iii)
The residential school shall consult
with the school district of residence to ensure the provision of a free,
appropriate public education, and compliance with the Individuals with
Disabilities Education Improvement Act (December 2004) during the
expulsion.

(c)
Special
circumstances warranting temporary removal. The residential school may remove a
child to an interim alternative educational setting for not more than
forty-five school days without regard to whether the behavior is determined to
be a manifestation of the child's disability in the special circumstances
outlined in paragraph (K)(20)(g) of rule
3301-51-05
of the Administrative Code.

(i)
The parents
or guardian of a child temporarily removed shall be given written notice of the
reasons for removal as soon as practicable after the removal.

(ii)
The residential school shall conduct a
hearing within seventy-two hours from the time of the removal order.

(iii)
The residential school shall
immediately consult with the school district of residence regarding an interim
alternative educational setting, emergency health service, and a change of
placement.

(3)
Suspension, expulsion, and temporary
removal notices shall be sent to the child's parent, guardian or custodian, a
representative of the Ohio department of education, and the superintendent of
the school district of residence. The notice shall include reasons for
suspension or expulsion and the right of appeal to a representative of the
state department of education. Notice shall be given within twenty-four hours
after the suspension or expulsion.

(4)
"National Instructional Materials Access Center
(NIMAC)" shall mean the national repository established at the American
printing house for the blind, inc. (APH) that contains NIMAS file
sets.

(B)
For a textbook to be listed on the approved textbook
publishers list, publishers shall deposit a NIMAS file set including images of
the textbook, into the national instructional materials access center (NIMAC)
for producing accessible formats prior to submission to the approved textbook
publishers list.

(C)
Publishers who list textbooks with the superintendent
of public instruction shall be responsible for providing the wholesale price of
the textbook and related print core instructional materials. Publishers shall
be responsible for providing the wholesale price of any textbook and related
print core instructional materials, or textbooks that have been previously
adopted, and reordered by a school board.

(D)
If an electronic
textbook (e-book) is not fully accessible on current computer platforms, or is
not available as a print instructional material, then the publisher must
provide NIMAS file sets to the NIMAC.